Supreme Court New South Wales Medium Neutral Citation: R v Ali; R v Amiri; R v Feili; R v Haidari; R v Parhizkar [2013] NSWSC 871 Hearing dates: 11 & 14 June 2013 Decision date: 28 June 2013 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Ali: Section 9 bond for 2 years Amiri: Sentenced to imprisonment for 1 year 10 months with a non-parole period of 1 year 2 months Feili: Sentenced to imprisonment for 3 years with a non-parole period of 1 year 10 months Haidari: Sentenced to imprisonment for 1 year 10 months with a non-parole period of 1 year 2 months Parhizkar: Sentenced to imprisonment for 3 years with a non-parole period of 1 year 10 months Catchwords: CRIMINAL LAW - sentencing - riot and affray - violent protest while in lawful immigration detention - threats to public officials and Commonwealth property - relevance of context of offending CRIMINAL LAW - sentencing - special circumstances - immigration detention - mental condition EVIDENCE - relevance of reports of refugee tribunals to sentencing offenders - admissible as evidence of prior statements and claims made by offenders Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Migration Act 1958 (Cth) Cases Cited: R v Abdollahi [2013] NSWSC 428 R v Chenarjaafarizad [2013] NSWSC 388 R v Dadash [2012] NSWSC 1511 R v Darabi, Mansoor & Razai [2013] NSWSC 387 R v Feili [2013] NSWSC 492 Category: Sentence Parties: Regina Haider Hussein Ali Mohammed Naim Amiri Taleb Feili Ali Haidari Majid Parhizkar Representation: Counsel: Mr G Farmer SC with Ms J Single (Crown) Mr M Paish (Ali) Mr J O'Sullivan (Amiri) Mr W Flynn (Feili) Mr R Pontello (Haidari) Mr D Marr (Parhizkar) Solicitors: Commonwealth Director of Public Prosecutions Archbold Legal (Ali, Amiri, Feili) Blair Criminal Lawyers (Haidari) L David Lock (Parhizkar) File Number(s): 2011/146172 2011/146064 2011/146355 2012/12243 2011/395447 Judgment 1HIS HONOUR: The offenders Haider Hussein Ali, Mohammed Naim Amiri, Taleb Feili, Ali Haidari and Majid Parhizkar are to be sentenced following a jury having found them to be guilty of criminal offences. Mr Ali was found guilty of affray and the other four men were found guilty of riot. These offences were committed at the Villawood Immigration Detention Centre ("Villawood") on 20 April 2011. 2Riot is an offence contrary to s 93B of the Crimes Act 1900 (NSW) and the prescribed maximum penalty is imprisonment for 15 years. Affray is an offence contrary to s 93C and the maximum penalty is imprisonment for 10 years. 3After almost two weeks of pre-trial hearings the trial itself commenced with the empanelment of the jury on 11 February 2013. The jury retired on 11 April and returned with their verdicts on 17 April. 4I have previously sentenced a number of other men who either pleaded guilty or were found guilty of affray: R v Dadash [2012] NSWSC 1511; R v Darabi, Mansoor & Razai [2013] NSWSC 387; R v Chenarjaafarizad [2013] NSWSC 388; and R v Abdollahi [2013] NSWSC 428. Facts 5To put into context the actions of each offender which led the jury to find them guilty of the offences I have just indicated, it is necessary to set out in some detail what occurred at Villawood on 20 April 2011. For this purpose I will adopt what I said in sentencing Mr Chenarjaafarizad (with appropriate modifications where necessary): [4] [Villawood] is an approved place under the Migration Act 1958 (Cth) for the detention of persons not authorised to enter or remain in Australia. Staffing at [Villawood] was contracted by the Department of Immigration and Citizenship ("DIAC") to a company known as Serco. [5] There are three compounds within [Villawood]; [each of the offenders were] 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 Crown case was that on 20 April 2011 a large number of detainees within the Fowler Compound set about a course of protesting the nature and circumstances of their detention and did so with the use of violence. [8] Two detainees, Mehdi Darabi and Amir Morad Mansoor, were seen on the roof of the Macquarie Building early in the morning of 20 April 2011. Thereafter they were seen to engage in various activities which included abusing Serco staff and throwing roof tiles. [9] In the early afternoon the activities officer tried to commence a game of soccer but Darabi and Mansoor told him not to because they were "making a point by being on the roof". More tiles were thrown. A detainee on the ground, Mahmood Dadash, approached the activities officer and remonstrated with him in an attempt to have him desist from starting the soccer game. Another detainee, Ali Abdollahi, approached in the company of a large number of other detainees and threw punches at the activities officer but fortunately they did not connect. [10] Around the middle of the afternoon a staff member who was taking refreshments to staff near the Macquarie Building was abused, told to "fuck off" and had a tile thrown at him. Mansoor called out, "we're up here for a reason, don't drink in front of us, we are up here for a reason. How dare you eat or drink in front of us. If you drink or eat in front of us, we're going to throw tiles at you". Staff who had formed a cordon around the Macquarie Building to prevent other detainees getting onto the roof were ordered to move back. [11] Detainees on the ground threw bedding and water bottles up to the roof. This activity continued and at about 6.00pm Mansoor called out to staff, "Don't stop them otherwise you'll get a tile thrown at your head". [12] More detainees attempted to join Darabi and Mansoor on the roof after 7.00pm. There was a large group on the ground, estimated to be between 40 and 60, aggressively yelling at Serco staff and management. There was a rush towards the Macquarie Building and more detainees made their way to the roof. [13] At about 7.30pm, detainees were yelling, "we want freedom". This continued for some time. Some of the detainees on the roof made ropes out of bed sheets to assist others to climb up. [14] At about 8.00pm, there was encouragement to those on the ground to continue the disturbance and come up to the roof. Tiles were thrown at staff who were trying to prevent them. One tile landed no more than a metre from one staff member who, naturally enough, had concerns for the safety of her staff and the other detainees. [15] One officer estimated that at about 8.20pm there were 80-90 detainees around the Macquarie Building. Thereafter the situation deteriorated with more shouting, yelling and abuse, tile throwing and other threatening behaviour towards staff. [16] There was a bank of payphone booths near to the Macquarie Building. At about 10.00pm, [Saied Chenarjaafarizad] was seen to be banging on the Perspex side of one of the booths. ... ... [18] There was an altercation between [Chenarjaafarizad] and a male member of staff. [He] repeated the demands that were being made by one of the detainees on the roof, Majid Parhizkar, for cigarettes and food. He twice grabbed the staff member and then walked away; raising his arms and saying "fuck you, fuck you". [19] Detainees ... started to run around the compound discharging fire extinguishers. ... [I]t is not suggested that any member of staff was affected by any of the spray or hit by [a] fire extinguisher. [20] Detainees dragged wheelie bins onto the soccer field where the rubbish was tipped out and then set alight. ... [21] Timber tables and chairs were taken onto the field and put on the fire. ... [22] A number of detainees ... dismantled a set of soccer goal posts. ... One of those involved threw parts at Serco staff. ... [23] These various events ... contributed significantly to the utter mayhem that was going on in the compound at around 11.00pm. Staff were confronted with detainees on the roof throwing tiles at them and at buildings; a roaring bonfire on the soccer field; detainees running around discharging fire extinguishers and throwing them and other objects at staff. They were forced to retreat behind a wall of the office so as not to be struck by tiles. [24] Eventually a group of around 20 or 30 detainees turned their attention to the staff and advanced towards them. The most senior officer described them as advancing "quickly and purposefully". One of them was holding a fire extinguisher above his head. When they got near, this man looked like he was going to throw the fire extinguisher at the staff but he hesitated and threw it at a window in the office. Another detainee then came from the bonfire with a burning piece of wood and leaned in through the broken window and set fire to the office. At this point the staff fled the compound. [25] Fires were set in a number of other buildings thereafter. The total amount of damage caused in the Fowler Compound and in other areas within Villawood was extreme; the estimated cost of reconstruction and repair is said to be in the order of $9 million. ... Activities of the present offenders 7Mr Ali was, on the Crown case, aware at an early stage of the evening, at least in a general sense, of what was developing within the compound. He warned a female member of staff in the vicinity of the laundry to "go away" and to "go back to the office". Later he was present when Mr Feili said to a male officer at the gate leading to the gymnasium, "officer, leave now". 8There was evidence in the Crown case from a single witness that Mr Ali was involved in the movement of wheelie bins and tables and chairs to the fire on the soccer field. I take the jury's verdict of not guilty to the primary charge of riot to mean that they were not satisfied to the necessary standard in respect of that evidence. Accordingly, I will put that to one side. 9It was common ground that Mr Ali was involved in activity related to the dismantling of soccer goal posts. The evidence was not entirely satisfactory but, consistent with the jury's verdict of guilty on the alternative charge of affray, I will proceed upon an acceptance that Mr Ali held a post above his head and moved in a menacing fashion towards one or more others before putting the post down. This occurred during the height of the tumult within the compound prior to the staff evacuation, although it indicates that Ali's role was relatively minimal. Significantly, his offence was not directed at Serco staff. 10Mr Amiri climbed onto the roof of the Macquarie Building at around sunset. He was the third or fourth to do so. He encouraged another detainee by gestures and words to come up to the roof. Thereafter he was seen to be throwing roof tiles towards staff and towards some contractors who were in the vicinity. He recently told a psychiatrist that he "picked up a tile and threw it on the ground; he did not throw it at anybody". However, in written submissions by his counsel it is accepted that he is depicted in video footage to be "throwing a few tiles into the compound". 11It is disputed as to whether Mr Amiri deliberately threw tiles at contractors, or at a particular female member of staff. I am not satisfied beyond reasonable doubt that those people were his targets. But he must have been aware of the potential for the tiles he threw to cause injury as he singled out one member of staff and said: "Simon, move away, I don't want to hurt you". 12There was no suggestion that anyone was hit by any of the tiles but undoubtedly the people in the vicinity of where the tiles were landing would have been fearful for their safety. It was conceded on the offender's behalf that staff would have been traumatised and that he must bear some responsibility for the damage to the compound. 13Mr Feili was not one of the detainees who went up onto the roof of the Macquarie Building but he was one of the most active of the participants in the riot on the ground. In the early evening, he approached one Serco officer, clicking his fingers and threatening her with his arms in the air. He was ranting and swearing in English and in his native tongue. He was heard to say, "You can help this stop. You can stop this now". He came quite close to the officer and grabbed at her. She said, understandably, that she felt "very frightened, very scared" (T295-296). 14It was submitted on Mr Feili's behalf that he was trying to assist Serco officers by drawing their attention to an apparent suicide attempt being made by one of the detainees on the roof. If that was so, it remains the case that the manner in which he did so was perceived as being more provocative than helpful. 15Sometime later, Mr Feili approached a male officer and said, in what was described as a loud and forceful manner, "I need to speak to someone high up from Immigration now and if you do that I can stop this now" (T514-515). At another time he approached another female officer and told her that he could "stop it" (T861). 16Mr Feili was one of the oldest of the detainees in the compound and these activities suggest that he was a person of some influence. However, he did nothing to try and prevent the subsequent violence; in fact, he played a significant role which encouraged its escalation. 17Mr Feili took up fire extinguishers and discharged them before throwing them in the direction of Serco staff. He involved himself in the movement of wheelie bins and a timber table and chairs to the fire on the soccer field. He was also involved in the dismantling of soccer goal posts and was seen to throw one part in a spear-like action towards staff. Finally, just before the staff evacuation, Mr Feili held a fire extinguisher above his head and threw it through a window of the office behind which the staff were cowering. 18It was submitted for Mr Feili that the evidence does not enable a conclusion that he was aware that someone intended to set the office alight. I accept that. But what he did facilitated the continuance and escalation of the destructive conduct that was going on around him. 19The Crown submitted that Mr Feili was involved in numerous acts of violence towards both people and property; he encouraged others, at least implicitly, to become involved; and he was directly threatening to staff. The evidence in the trial clearly supports those propositions. It also supports the submission that "he was central to the violent activities on the ground". 20It was submitted for Mr Feili that he had consumed alcohol and that "his judgment and inhibitions may have been clouded by that factor". The evidence on this issue was not entirely persuasive but I am prepared to accept on balance that he probably was. The relevance of this is not to reduce his moral culpability but it does support a finding that his actions were out of character. Such a finding does not distinguish his case from any of the other offenders; all of them did things that were not typical of their normal behaviour. 21Mr Haidari was seen on the roof of the Macquarie Building at around 7.30pm. He was involved in lifting up tiles and passing them to another detainee (Parhizkar) who threw them. He also threw some tiles himself. 22Mr Parhizkar was one of the most active detainees in the violent activities. He had been in the visits area elsewhere within Villawood and returned to the Fowler Compound in the early evening. I accept the evidence in the trial that he immediately went to his room where he shaved his head and then went up onto the roof of the Macquarie Building. There he became the most active of the tile throwers. A number of witnesses gave evidence of this but it was clearly depicted in video footage which was an exhibit in the trial. Many of the tiles he threw were directed at buildings and other physical structures as well as at staff. 23One Serco officer gave evidence of seeing Mr Parhizkar throwing at least 30 tiles. He said, "As the tiles hit the ground they just broke up and on impact they just - like they exploded, they just broke up and shattered and [bits of tiles] flew off in all directions." One of the tiles passed within a foot of the officer's head and left a dent in a wall behind him. When asked how this made him feel, the officer responded, "Terrified" (T698-699). The officer was evidently still distressed when giving evidence about these events. 24While he was on the roof, Mr Parhizkar made demands for cigarettes, food and water. He also demanded that immigration officials attend. Otherwise he was heard to be shouting and swearing, saying things such as "Fuck Australia, Serco no good". 25Mr Parhizkar pleaded guilty on arraignment before the jury panel to an alternative charge of affray. The Crown did not accept that plea; I presume because of the active and influential role that he played in the incident. The evidence against him on the charge of riot was overwhelming and it is little wonder that he was found guilty. Seriousness of the offences 26Although the activities of the present five offenders varied in both nature and extent, account must also be taken of the context in order to make a meaningful assessment of the appropriate sentence to impose. 27In a general sense, because the activities of those detainees involved in the incident at Villawood on 20 April 2011 were carried out over a significant period of time, and were directed at public infrastructure and unarmed public officials who were merely endeavouring to carry out their duties, the matter is of considerable seriousness. The safety of staff was put at grave risk and it appears to be only by good fortune that no physical injuries were sustained. 28Staff were forced to cower behind the office wall to avoid being struck by the torrent of missiles from the roof of the Macquarie Building while other detainees on the ground were running rampant with fire extinguishers and setting fire to bedding, tables, chairs and other items on the soccer field. Ultimately they were forced to evacuate the compound as a large number of detainees advanced upon them and set fire to the office. 29It is not only the activities of those involved in perpetrating acts of violence towards people and property that must be considered. Other detainees showed their support by yelling and shouting. There was the continual chanting of "freedom" and some were calling out things such as "fuck Australia", "fuck Immigration" and "fuck Serco". Clearly, this must have been a most terrifying experience for the Serco staff. It must also have been terrifying for other detainees who were not involved and sought refuge elsewhere within the Villawood complex. They had to be evacuated as well. 30The psychological harm caused to a number of staff members must be recognised; indeed it was palpable with some in the distress that they exhibited in the course of recounting the events. 31There was a suggestion that the incident was premeditated by some detainees. However there is no evidence that any of the present offenders did anything other than participate spontaneously. 32Of those of the offenders to be sentenced for riot, I assess the offences of Feili and Parhizkar as being the most serious because of the significant roles they played in perpetrating violent acts and in influencing the involvement of other detainees. 33The roles played by Amiri and Haidari were not identical but broadly similar. This was largely accepted by their counsel. 34If the context was disregarded, the offence of affray committed by Mr Ali might be regarded as almost trivial. However it is more than that when seen in the light of preceding and concurrent events that he must have appreciated he was involving himself in. The more people who involved themselves, in whatever way, the more serious the overall incident became. 35I have had regard to the circumstances of the offences of affray for which I have previously sentenced six other offenders. They are described in considerable detail in the various sentencing judgments I referred to earlier and do not bear repeating now. Suffice to say that I regard the offence by Mr Ali as being the least serious, except in the case of Mr Abdollahi. Personal circumstances of the offender Ali 36Mr Ali arrived on Christmas Island as what is termed an "irregular maritime arrival" on 13 January 2010. At the time of the offence he had been found not to be a genuine refugee by a Refugee Status Assessment and two Independent Merits Reviews. Unlike others, he has not sought any judicial review of those determinations. It seems that his immigration status, that is whether he will be permitted to remain in Australia or will be deported, will be determined after these proceedings are concluded. 37Mr Ali was born in Iraq in 1972. He is now aged 40. He is the sixth eldest of nine siblings. He was educated until the age of 10. His family was forced to move to Iran after the Faili Kurds were ejected from Iraq under the regime of Saddam Hussein. For the first 18 months the family lived in a detention centre and then set up home in the city of Qom. They experienced difficulties living in Iran; he has claimed that they were continually humiliated, marginalised and persecuted, and this mirrored their previous experience in Iraq. 38Mr Ali has generally been in employment, most recently in a family business, before leaving Iran. He married when aged 18 and he and his wife have 4 children. 39At one point after the overthrow of the Saddam Hussein regime, Mr Ali returned to Iraq to explore the possibility of re-establishing a life for his family there. He soon realised that this was not an option and returned to his family in Iran. It seems that it was soon afterwards that he made the decision to flee to Australia. A psychologist has summarised Mr Ali's reasons as being "not as a result of one specific event that made him particularly fearful for his survival but because of the cumulative impact of a long term and ongoing experience of deprivation, persecution and trauma for himself and his family." Another psychologist recorded that Mr Ali had said that he "left Iran in search for a safe place and better future for his family." 40Since being in immigration detention Mr Ali has been documented as exhibiting increasingly severe symptoms of depression. This has arisen from his anxiety and frustration from a combination of separation from his family and from the nature and circumstances of his detention. The former includes concern of news from home about the harassment his children were experiencing and the family's general financial difficulties. The latter includes suicides and attempted suicides by fellow detainees. A further matter exacerbating his difficulties in detention is that he has converted to Judaism and this has resulted in him being mistreated by detainees who adhere to the Islamic faith. He has become socially withdrawn and isolated. 41A report in October 2010 recorded him as exhibiting psychological signs and symptoms of depression, anxiety and post traumatic stress, the latter being the predominant feature which is related to a number of traumatic events in Mr Ali's life in Iran. Another psychological report prepared recently (February 2013) records no significant change in the intensity of Mr Ali's symptoms of post traumatic stress and anxiety. However, his symptoms of depression had worsened in both frequency and intensity. 42Three reports by Dr Stephen Allnutt, forensic psychiatrist, were tendered. They include an extensive review of medical records with repeated and consistent history that support the conclusions of the psychologist I have referred to. That history, together with that obtained from Mr Ali by Dr Allnutt, amply supports the doctor's conclusion which is encapsulated in the following paragraph of his most recent report of 12 June 2013: In my opinion at this stage I would be of the view that your client demonstrates a constellation of anxiety and depressive symptoms consistent with either depression with associated panic attacks or a post traumatic stress disorder with secondary depression; overall the weight of the evidence supports the conclusion that he has a diagnosable psychiatric condition; differential diagnosis would include an adjustment disorder with depressed and anxious mood. 43In the concluding paragraph of the section of that report under the heading "Opinion", Dr Allnutt recounts a variety of matters commencing from Mr Ali's life in Iraq and Iran through until 20 April 2011, leading the doctor to conclude that Mr Ali "would have [been] vulnerable to reacting to a process of civil disobedience". 44Dr Allnutt made three recommendations. The first two concern the need for Mr Ali to receive psychiatric and psychological counselling and treatment. The third is "that the Immigration Department determine his case as soon as possible as maintaining him in detention would be seen as causal of mental illness". 45The Crown tendered some documents sourced from DIAC for the purpose of demonstrating that the account Mr Ali had provided in the course of the assessment of his claim for refugee status varied from that which he had provided to Dr Allnutt. Assuming for present purposes that this is so, there is, however, no reason to doubt the symptoms which have been recorded, in a largely consistent fashion, in the documents to which Dr Allnutt refers. I have no reason to doubt the correctness of Dr Allnutt's assessment of Mr Ali. 46I am satisfied that the psychiatric condition of Mr Ali as at 20 April 2011 was such that his moral culpability was at a reduced level; the offence is less serious than it otherwise might be perceived on that account; and that there is a similarly reduced need for emphasis upon general deterrence. Personal deterrence is of no real significance. 47If it was not for the fact that Mr Ali was charged with the offence of riot (of which he was acquitted), this would have been a case well suited to disposal in the Local Court. If that had occurred, the case would have been resolved a long time ago. Mr Ali has been kept in a state of uncertainty for a considerably longer period; the adverse effect that prolonged detention has had upon his mental state is clear. 48Further in Mr Ali's case is the fact that he has no prior convictions; he is a person of good character; he has good prospects of rehabilitation; and is unlikely to re-offend. 49Another matter that must be taken into account is that Mr Ali was held in corrective services custody after being charged and refused bail for a period of 10 months 16 days (22 April 2011 to 8 March 2012). Moreover, having regard to his mental state, he undoubtedly found that experience considerably more onerous than a more typical remand inmate would. 50The Crown contended that no sentence other than one of full-time imprisonment is appropriate, although when pressed, conceded that nothing more than what he has already served is necessary. 51It would be easy just to sentence Mr Ali to imprisonment for the same period, or a lesser period, than that which he has served. But I must determine a sentence based upon the objective gravity of what he did, which was relatively minimal, but aggravated by the context in which he did it, as well as upon all of his subjective circumstances. In my judgment, that calls for disposition under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Personal circumstances of the offender Amiri 52Mr Amiri arrived on Christmas Island as an irregular maritime arrival on 27 November 2009. At the time of the offence he had been found not to be a genuine refugee. The third rejection of his claim came about a week before the riot. He subsequently sought judicial review but failed in the Federal Magistrates Court and on appeal to the Full Federal Court. An application for special leave to appeal to the High Court is pending. 53Mr Amiri was born in Afghanistan in 1986. He is aged 26. He is the eldest of seven siblings, two of whom died in early childhood. The family was relatively well-off. His father was a shopkeeper. He completed eight or nine years of education and then worked in his father's business. The shop was sold and a petrol station was purchased. It was attacked and destroyed by Taliban soldiers in 2008. Thereafter the family fled their village. Mr Amiri was sent to Kabul where he paid a smuggler to take him out of the country. The rest of the family went to another place elsewhere in Afghanistan. Mr Amiri claims that earlier in his life he witnessed a number of war-related events which were distressing; he was exposed to dead bodies and people being killed. 54His journey to Australia was lengthy and traumatic. He was detained for about four months on Christmas Island before being transferred to Villawood. At Villawood, he witnessed aspects of the suicide of two detainees. He was held in corrective services custody after he was charged and bail refused for his role in the riot on 20 April 2011. He claims that he was held in isolation for two months (according to what he told a psychologist in June 2012) or 21 days (according to what he told a psychiatrist in January 2013). After he was allowed out in the main stream of the gaol population he was threatened on occasions by other inmates and had to seek protection from gaol staff. He considered that these experiences negatively impacted upon his psychological and emotional health. 55Mr Amiri was assessed in June 2012 by a psychologist with the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. It was considered that he was exhibiting symptoms of anxiety, depression and post traumatic stress disorder. An earlier assessment by another psychologist with that service in May 2010 also detected symptoms of post traumatic stress disorder which were thought to have increased in intensity after his detainment in Australia. 56More recently, Mr Amiri was assessed by Dr Allnutt. His conclusions are perhaps best encapsulated in the following from his report of 12 June 2013: Given his circumstances he would have been vulnerable, given the futility of his position, to engaging in the offending protest to bring attention to his and others plight; at the material time he was manifesting depressive symptoms consistent with a chronic adjustment disorder (and developing a depressive disorder) and symptoms of post traumatic stress disorder; that is, ongoing persistent psychological distress in the context of the persisting detention and its associated stressors. 57Dr Allnutt recommended that Mr Amiri should engage with both a psychiatrist and a psychologist. He qualified for the prescription of antidepressant medication. He required ongoing cultural and social support. Dr Allnutt also recommended that DIAC finalise the determination of Mr Amiri's case "as soon as possible as to any intents and purposes his circumstances with regard to levels of stress would be seen as extremely high, long term, persistent and causing psychological pathology". 58Dr Allnutt was cross-examined about his conclusions. I have considered what he said in that context. In the end, I am prepared to accept his report. 59I am not satisfied that Mr Amiri is genuinely remorseful. He told Dr Allnutt that he "now felt bad about what he had done; he felt sorry for what he had done and acknowledged it was wrong". But that was in the context of him falsely claiming that he had only thrown one tile and that it was simply thrown on the ground. I have not heard a word from Mr Amiri himself. He did not have to give evidence, but avoiding any direct challenge to his veracity by cross-examination makes it difficult to accept him on this topic. 60There were about 30 testimonials tendered in support of Mr Amiri. I have read them all. They are positive in their support for him and attest to his many fine character attributes. Some of the authors strayed into offering opinions about the Australian government's immigration policies and the treatment of asylum seekers. These are matters that I must put to one side. I do, however, accept in large part what is said about the frustration Mr Amiri must have been feeling about the length of time he had been kept in detention. I accept that in his case, as with others, that it was the motivation for them participating in the events of 20 April 2011 at Villawood. It does not, of course, excuse their use of violence and I cannot imagine that it assuages the trauma and distress of those who suffered as a consequence. 61One thing that clearly emerges from the number of testimonials tendered in Mr Amiri's case is that he has a large support network. Many people regard him as a friend, are prepared to visit him regularly and indicate that they will continue to support him. 62I will say more about the findings I have made about Mr Amiri, and the others I am about to refer to, towards the end of these sentencing remarks. Personal circumstances of the offender Feili 63Mr Feili arrived on Christmas Island as an irregular maritime arrival on 17 June 2010. At the time of the offence he had twice been found not to be a genuine refugee. He has not sought judicial review of those determinations. It was subsequently determined that he did not meet the criteria for referral to the Minister for Immigration for consideration of granting him a visa pursuant to s 195A of the Migration Act. On 10 May 2011, Mr Feili sought removal from Australia but he withdrew this request two months later. At the present time Mr Feili's immigration status is in limbo until the finalisation of the criminal proceedings. 64Mr Feili was born in 1956 in Baghdad, Iraq. He is now aged 57. He is the sixth eldest of nine siblings and the family environment has been described as "close knit" and "nurturing". His family was of Kurdish ethnicity and they were forced to flee to Iran under the regime of Saddam Hussein when he was 16 years old. They then had an unsettled existence before moving to live in Tehran. 65He completed primary school education in Iraq. He had some unskilled employment after the family moved to Iran but opportunities were extremely limited because of his Iraqi origin and Kurdish ethnicity. On another account he had worked as a carpenter, in a metal shop and also in making ladies' decorative apparel. He had not had any significant relationships, was single and had no children. His father passed away some 30 years ago. One of his siblings has also died. His mother continues to live in Tehran and his siblings are in either Iran or Iraq. When he was interviewed by Dr Bruce Westmore, forensic psychiatrist in March this year for the purpose of a fitness to be tried assessment he said that his family had not been in contact with him for the past 7 or 8 months. 66Mr Feili was assessed by a psychologist with the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors in two interviews in February this year. The essence of what he told the psychologist was that life in Iran was hard; his family was subjected to discrimination, humiliation and a moderate level of violence. He had one experience himself some eight or nine years ago of having been brutally assaulted and detained for three days by police. Testing by the psychologist indicated the likelihood of post traumatic stress disorder, anxiety and depression. 67His physical health is worth mentioning as well; he has had two heart attacks, one in Iran about eight years ago and another shortly after arriving in Australia. He claimed to have had a tumour removed from his back when he was in corrective services custody. 68Mr Feili was interviewed by Dr Allnutt in January 2013. The history provided included that he found life in detention difficult but more so since arriving at Villawood. He had witnessed suicide and self-harm incidents which he found distressing. At the time of the offence he felt depressed, upset and frustrated. 69Dr Allnutt offered the following: At the material time of the ... offending [Mr Feili] was experiencing depressive symptoms and states he was intoxicated; he was, in my view vulnerable to interpreting his circumstances as hopeless and was prone to impulsivity and disinhibition; given his circumstances he would have been vulnerable to perceiving his behaviour as justified in staging a protest in order to bring attention to his situation; that is a situation of persisting loss of liberty, loss of dignity, loss of control of his destiny and uncertainty, not unlike his prior experiences in Iran, but unexpected in Australia. 70Dr Allnutt's recommendations were that the offender would benefit from interactions with a psychiatrist, a psychologist and a general practitioner. He should also be encouraged to persist with his present two year abstention from the use of alcohol and from his use, in Iran, of opium. 71Dr Westmore's report of 11 March 2013 was primarily focussed upon the fitness to be tried issue (he was found fit - R v Feili [2013] NSWSC 492). But it included the doctor's diagnosis that Mr Feili suffered from an adjustment disorder with depressed mood, alternatively, dysthymic disorder or a major depressive disorder. Substance and alcohol abuse disorders were felt to be in remission. 72The issue as to Mr Feili's psychological and psychiatric state at the time of the offence is less than clear. I have Dr Allnutt's assessment but, unlike the cases of others, there are no contemporaneous or previous documented assessments that support it. However I am prepared to accept Dr Allnutt's conclusions on balance. The degree to which Mr Feili was affected by the depressive symptoms at the relevant time does appear to be less than in the cases of others. I accept that the position is clearer as to Mr Feili's mental state in more recent times and I will take it into account as a more significant factor in the assessment of sentence. 73Three testimonials were tendered which each speak highly of Mr Feili's various positive character traits. One was written by his wife; they were married only last month. I have taken these matters into account. Personal circumstances of the offender Haidari 74Mr Haidari arrived on Christmas Island as an irregular maritime arrival on 2 April 2010. At the time of the offence he had twice been found not to be a genuine refugee. He sought judicial review; failed in the Federal Magistrates Court; but then succeeded on appeal in the Full Federal Court. The matter was remitted for redetermination but the Federal Magistrates Court again dismissed his application and this time the finding was affirmed on appeal. He failed in a referral to the Minister for consideration of being held in community detention in March this year. As things presently stand, he is awaiting the resolution of the criminal proceedings, after which it is expected there will be a decision by immigration authorities as to whether he will be deported. 75Mr Haidari was born in Afghanistan in 1983. He is now aged 29. He is the eldest of five children. His siblings still live in his native country with his mother; his father having passed away from natural causes a few years ago. He is married. His wife and their 3 year old child also still live in Afghanistan. 76According to the history provided to the author of a psychological report in March 2011, Mr Haidari's family were of the Hazara ethnic minority and for this reason they experienced discrimination and persecution. This included a denial of access to education and employment. The history includes, however, that Mr Haidari worked with his father as a shopkeeper and later travelled to Iran where he worked as a bricklayer. He returned to Afghanistan when about 23 years of age where he met his wife and married soon after. 77The event which triggered Mr Haidari's decision to leave Afghanistan involved him being threatened with death by a member of the Taliban if he did not provide information about a person connected with the recent murder of the Taliban member's brother. Mr Haidari was unable to provide the information and fled the country instead. 78The psychologist reported that Mr Haidari spoke of difficulties with sleeping and that he experienced intrusive memories and flashbacks to the incident just mentioned. Being in immigration detention made him feel that he was being treated unjustly, just as people of his ethnic origin had been treated in his home country. He is also reported to have difficulties trusting people, especially authority figures. He associated well with other detainees; he felt that they too were being mistreated and shared his feelings of injustice. 79The psychologist found that Mr Haidari exhibited some of the symptoms associated with post traumatic stress disorder and major depressive disorder. She expressed the opinion that the symptoms were likely to worsen with prolonged detention and recommended that he receive psychological treatment and counselling. The report is over two years old; what the present situation is remains unclear. Medical records tendered by the Crown indicate that the symptoms continued until at least October 2011 and he was being provided with antidepressant medication. The Crown Prosecutor indicated in submissions that it was not disputed that Mr Haidari exhibited symptoms of depression. 80It was submitted that Mr Haidari's moral culpability for the commission of the offence was less on account of him likely experiencing these symptoms at the time and also that there should be less emphasis placed upon general deterrence. I am prepared to accept that this is so. 81Four testimonials were tendered on Mr Haidari's behalf, each of which speak to many positive character traits. They include descriptions of him being a "quietly spoken, gentle individual"; "well behaved, quiet, gentle, thoughtful and considerate"; "a man of exceptional integrity and nobility of character"; and "a gentle, shy and unassuming, straightforward person who exhibits self control in spite of his difficult situation". There is also reference to him making efforts to advance his English language skills and there is confirmation of this in two certificates of his attendance at courses. 82Another aspect that was raised in Mr Haidari's case was his "current physical ailments". He underwent a day surgery procedure recently for the investigation of a urinary tract problem. There was also some suggestion of him having had an abnormal ECG. There has been no definitive diagnosis of either matter so it is difficult to take these matters into account. Personal circumstances of the offender Parhizkar 83Mr Parhizkar arrived on Christmas Island as an irregular maritime arrival on 14 September 2009. At the time of the offence he had three times been found not to be a genuine refugee. He subsequently sought judicial review in the Federal Magistrates Court but failed. In April last year he was notified of a positive outcome of an International Treaties Obligations Assessment - that is, he could be considered by the Minister for the granting of a visa notwithstanding he was not a genuine refugee. However, referral to the Minister for consideration of this issue was deferred until after the criminal proceedings had concluded. In January this year he was found to meet guidelines for referral to the Minister for the purpose of his consideration of permitting detention within the community. The Minister has not determined that referral at the present time. 84Mr Parhizkar was born in Iran in 1986. He is now aged 27. He is the youngest of five children and was raised in a loving and supportive familial environment. He completed school where he is said to have been an average student. He established a photography business and he also had a company trading in phone and barter cards. He travelled internationally to participate in the sport of karate. His mother, sister and a brother are in Australia whilst his father and presumably his other brothers remain in Iran. He is single and has no children. He has a girlfriend who he met three years ago whilst in immigration detention. He has a reasonable command of English. 85Various reasons have been advanced by Mr Parhizkar in his attempt to be accepted into Australia as a genuine refugee. Initially it was confined to a claim that he had committed adultery with the wife of a policeman and he fled in fear of retribution after the man discovered the relationship. Later, after his initial claim had been rejected, he added that he had been involved in political protests. He also claimed that he was liable to be the subject of religious persecution if he was returned to his home country because since being in Australia he had converted from Islam to Christianity. Mr Parhizkar's brother fled from Iran as well but he was unaware of this until by coincidence they met up in Indonesia. 86Documents tendered by the Crown in relation to this aspect of the case were objected to by Mr Parhizkar's counsel. I provisionally received them and, having had the opportunity to consider them in detail, conclude that they are relevant and admissible, not for the opinions expressed by the assessors of Mr Parhizkar's case but for the statements and claims that he has made himself. They have a bearing upon the question of whether he is a reliable and credible historian. They are also relevant to show that frustration was likely to be at least one motive for Mr Parhizkar to involve himself in the events of 20 April 2011. The documents show that he had gone to considerable lengths to make out a case for being accepted as a refugee but had failed in a second Independent Merits Review only weeks before. 87Mr Parhizkar was assessed by Dr Allnutt in an interview conducted at Villawood in January this year. There is reason to be cautious about the veracity of the history set out in the doctor's report; for example, the reasons he provided for his flight from Iran are not entirely consistent with his previous claims. He told Dr Allnutt that he had been charged for having published political material in the lead up to the presidential elections in 2009 and that he and his brother had fled the country together. Dr Allnutt did not hear anything about the adultery that Mr Parhizkar had first advanced to immigration authorities. 88The history provided to Dr Allnutt included that Mr Parhizkar had become depressed during the time he had been in immigration detention. He had been provided with medication for this. He witnessed a number of distressing incidents which occurred to other detainees including self-harming and suicide attempts. He attempted suicide himself near the end of 2010 after one of the rejections of his claim for asylum. At the time of the incident on 20 April 2011 he was in a state of helplessness and despair and felt significantly more depressed after the recent rejection of what he thought was his last hope to remain in this country. 89Mr Parhizkar claimed that he was the last person to go onto the roof of the Macquarie Building. He thought he had nothing to lose by joining those who were already there. His purpose was to "protest" but he also claimed that he took a knife with him and attempted to slash his wrists, only being prevented from doing so by the intervention of other inmates. I note that nothing of this was raised in the course of the trial and I do not accept it. The history provided to Dr Allnutt completely omitted any mention of tile throwing; indeed it was to the effect that after the failed suicide attempt his next memory was of still being on the roof and the compound being on fire. 90Dr Allnutt was of the view that at the time of the offence Mr Parhizkar was "experiencing active symptoms of a depressive disorder with associated post traumatic stress symptoms which compounded feelings of worthless[ness], despair and hopelessness, as well as anger at the system". 91Dr Allnutt was challenged about his diagnosis on the basis that it depended upon acceptance of the veracity of the history provided by Mr Parhizkar. His response was to the effect that a diagnosis of mental illness is not automatically precluded by an offender having told lies about their background and the circumstances of the offence. Nevertheless, he was mindful of the possibility that if a person lied about those types of matters there could be questions about whether they were being truthful about other matters more germane to the diagnosis, such as, in this case, difficulty in sleeping, nightmares, and loss of appetite. 92Whilst there is real reason to question the veracity of a number of aspects of the history recorded by Dr Allnutt, it seems reasonable that the more significant matters bearing upon the doctor's diagnosis should be accepted. There is a consistency of the complaints by Mr Parhizkar recorded in the medical records reviewed by Dr Allnutt of problems with sleeping and nightmares and there is a record of the self-harming incident in 2010. Antidepressant medication had been prescribed as long ago as late 2009. In October 2010, a psychologist reported that Mr Parhizkar was suffering from post traumatic stress disorder with depressive features. 93Justice Health records included notes of a psychiatric assessment of Mr Parhizkar on 6 May 2011. The history he provided on that occasion contained falsities; for example that he had never previously self-harmed and had no past psychiatric history. He had in fact been admitted to a psychiatric hospital in Perth in 2010 following the attempt at suicide. But Dr Allnutt preferred the consistency that appeared in other records over a considerable period of time as being the more reliable. I accept his evidence in that respect. 94As at January 2013, Dr Allnutt was of the view that Mr Parhizkar was suffering from a depressive disorder and exhibiting some signs of post traumatic stress disorder. 95It was submitted that I should find that Mr Parhizkar's moral culpability and the need for general deterrence are less on account of his mental condition. I accept that submission. 96Numerous testimonials were tendered on the offender's behalf. They included one from his girlfriend, Ms Fariba Jaffari, who wrote positively about their relationship and their plans for the future. Others describe Mr Parhizkar in terms such as "warm, considerate and respectful", "well-mannered, considerate and honest"; "respectful and amicable", "playful and friendly", and an "individual with a fantastic sense of humour". Some, however, also noted a decline in his mood over time. Some also seek to offer opinions as to the cause and motivation underlying Mr Parhizkar's offending behaviour; the authors who did so were not qualified as experts and I have ignored such opinions. 97A matter that is of some minor benefit to Mr Parhizkar is that he pleaded guilty to affray at the commencement of the trial. The Crown did not accept that plea and, of course, he was ultimately found guilty of the primary charge of riot. What this meant, however, was that there was no dispute about the nature of the activity Mr Parhizkar was involved in. There was some dispute about the extent and duration of it; but the primary issue was whether he was involved in a common purpose with at least 11 others to protest their detention by violent means. Other matters relevant to sentence for Amiri, Feili, Haidari and Parhizkar 98I readily accept that the events of 20 April 2011 were prompted by frustration, and perhaps despair, that some of the detainees at Villawood were experiencing. But that does not excuse what might be termed "mob violence". Whatever views might be held about the regime of immigration detention within this country, the fact remains that it is pursuant to valid laws of the Commonwealth Parliament. Nobody can question that there is a right to protest, but those of violence is completely unacceptable. 99General deterrence is a significant aspect of sentencing in the circumstances of these four offenders. Legal avenues are available for detainees who seek to question or challenge decisions made by government officials concerning their claims for asylum. The courts will certainly not condone the actions of those who resort to violence instead. There will, however, be some reduction of the weight given to general deterrence on account of the mental state of the offenders. 100I am satisfied in respect of each of the offenders that they are of prior good character in the sense that there is no suggestion that they have previously committed any criminal offences. I have also taken into account the positive evidence as to their character. 101Given that finding, coupled with the length of time in which they have each been held in immigration detention and that there is no suggestion of any violent conduct by them on any other occasion, I am satisfied that they are unlikely to re-offend and have good prospects of rehabilitation. 102I am not persuaded that any of the offenders are genuinely remorseful for the offending conduct. 103Having regard to the seriousness of the offences I am satisfied that no sentence other than one of imprisonment is appropriate. In this respect I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act as well as all of the circumstances of their respective cases. Imprisonment was specifically conceded as the only available sentencing option for each of these four offenders. 104I accept that each of them would find that the conditions of a custodial sentence will be more onerous than would be the case for the average prison inmate on the basis, as Mr Flynn put it on behalf of Mr Feili, of linguistic and cultural factors. The psychological and psychiatric conditions I have referred to are another factor. 105I am satisfied that there are special circumstances for setting a non-parole period that is less than the usual proportion of the total term of the sentence required by s 44 of the Crimes (Sentencing Procedure) Act. In this regard I have taken into account the fact that the offenders have spent a considerable period of time in one form of custody or another and that the various psychiatric and psychological issues disclosed in the various reports indicate that it would be preferable for both them, and the community, that they be allowed a lengthier period of parole supervision upon release. It should be noted that the law is clear that I am required to ignore any prospect of deportation in relation to this issue. Pre-sentence custody 106The offenders Amiri, Feili and Parhizkar were arrested and charged on 4 May 2011. Haidari was not charged until 12 January 2012. However, they were removed from an immigration detention facility and held in gaol at other times. I have previously indicated an acceptance of the proposition that time in which an offender has been held in gaol as a result of involvement in the events of 20 April 2011 should be taken into account, even if it pre-dated arrest and charge. 107Amiri and Feili were in custody from 22 April 2011 until 8 March 2012 (10 months 16 days). Haidari was in custody from 22 April to 11 May 2011 and from 12 January 2012 to 21 February 2012 (61 days). Parhizkar was in custody from 4 May 2011 until 25 May 2012 (1 year 22 days). I will take this into account by backdating the sentences by the periods indicated. 108I have also taken into account in favour of each offender, although in an unquantifiable sense, that it is likely that the length of time they have been kept in immigration detention has been exacerbated by the fact that there have been pending criminal proceedings against them. Sentence 109Ali Convicted. Directed to enter into a bond for a period of 2 years. Conditions of the bond are that he is to be of good behaviour; he is to appear before the Court if called upon to do so at any time during the term of the bond; and he is to notify the Registrar of the Court of any change of address within 7 days of such change. I request that Mr Ali's solicitor explain to him his obligations under the bond and the consequences of any failure to comply with any of the conditions. 110Amiri Convicted. Sentenced to imprisonment comprising a non-parole period of 1 year 2 months and a balance of the term of the sentence of 8 months. The sentence will date from 10 August 2012. The offender is to be released on parole upon the expiration of the non-parole period on 9 October 2013. The total term of the sentence will expire on 9 June 2014. 111Feili Convicted. Sentenced to imprisonment comprising a non-parole period of 1 year 10 months and a balance of the term of the sentence of 1 year 2 months. The sentence will date from 10 August 2012. The offender to be released on parole upon the expiration of the non-parole period on 9 June 2014. The total term of the sentence will expire on 9 August 2015. 112Haidari Convicted. Sentenced to imprisonment comprising a non-parole period of 1 year 2 months and a balance of the term of the sentence of 8 months. The sentence will date from 28 April 2013. The offender is to be released on parole upon the expiration of the non-parole period on 27 June 2014. The total term of the sentence will expire on 27 February 2015. 113Parhizkar Convicted. Sentenced to imprisonment comprising a non-parole period of 1 year 10 months and a balance of the term of the sentence of 1 year 2 months. The sentence will date from 5 June 2012. The offender to be released on parole upon the expiration of the non-parole period on 4 April 2014. The total term of the sentence will expire on 4 June 2015. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2013