District Court New South Wales Medium Neutral Citation: R v Haydar Phili [2018] NSWDC 513 Hearing dates: 13 December 2018 Date of orders: 13 December 2018 Decision date: 13 December 2018 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: A term of imprisonment of 21 months with a non-parole period of 13 months: at [12] Catchwords: SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Relevant factors on sentence — Quasi custody SENTENCING — Subjective considerations on sentence — Deportation — Drug addiction — Mental illness — Special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Nil Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Haydar Phili (Offender) Representation: Mr Paish (Crown) Ms Gallagher (Offender) File Number(s): 2016/93074 Publication restriction: Nil Judgment 1. Many refugees from Iran and other parts of the Middle East come to Australia in search of a better life and hope to become integrated into Australian society and be useful contributors. For some, including this offender, things do not quite work out that way and they go off the rails, and end up in court facing sentencing for a serious criminal charge, having been kept in immigration detention for a significant period of time and facing the inevitability of a matter that is irrelevant to the sentencing exercise, namely, deportation. 2. This offender was born on 21 October 1989 and pleaded guilty at a late stage to a charge under s 35(4) of the Crimes Act 1900 of reckless wounding which carries a maximum penalty of seven years imprisonment with a standard non-period of three years, which are both important yardsticks in the sentencing process to be carried out in accordance with the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999. 3. I describe it as a late plea because the matter was initially listed for trial in July 2017, then a trial proceeded in April 2018 but the jury was unable to reach verdicts. The matter was then listed again for trial on 29 October 2018 but the offender entered a plea of guilty on 1 December to a lesser charge than those brought at trial so he is entitled, in my view, to a 10% discount on any term of imprisonment for the utilitarian value of that plea. The principle charge at the earlier trial was of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 which is, of course, a much more serious offence than that to which he ultimately pleaded guilty. 4. It is conceded by counsel for the offender that a term of imprisonment is warranted by the circumstances of this case and it is unnecessary for me to consider any alternatives having accepted that the section 5 threshold has been crossed. 5. His time since arrest on 27 March 2016 has been spent either in Corrective Services custody or in immigration detention. He was in custody from the date of his arrest until 23 August 2016 and again, from 30 May to 6 June 2018, and for the balance of the period he has been in immigration detention making up a total of almost two years and nine months. 6. His criminal history includes an offence of enter enclosed lands on 14 March 2016 and possess prohibited drug on 22 March 2016. Those matters were dealt with at court in March and April 2016 with small fines. There was one other possess prohibited drug charge occurring on 15 February 2016 also dealt with by a fine. 7. The agreed facts show that he is a refugee from Iran who was living in Granville in the bedroom of a house, with the victim and one other person staying in other rooms. The offender was trying to get into one of the other occupant's bedrooms making a noise which woke up the victim. There was an altercation between the victim and the offender. The victim put his hand on the offender's back to guide him away and then the offender then punched the victim with his right hand and the victim punched him back. They each punched each other a couple more times and then the offender drew a knife from his back or his pocket. The victim stopped punching him and the offender hit him in the back of the head and neck while holding the knife in a closed fist. The knife penetrated the victim's shoulder and he ran out the front of the house screaming. Police arrived and the victim was seen to be bleeding from the shoulder, he was taken by ambulance to hospital and treated for a one centimetre long wound penetrating the epidermis and dermis of his left shoulder blade and for a five millimetre graze to the right side of his neck. The principal wound was treated with a Steri-strip and, as the Crown correctly notes, did not require sutures and the victim checked himself out of hospital shortly afterwards. The offender was arrested and participated in an interview in which he admitted that he had hit the victim with the knife. 8. I have regard to an affidavit from Christine Bourke, a solicitor with great experience in the Correctives and Immigration detention environment and she describes the conditions under which people are kept in various parts of the Villawood Detention Centre. 9. The subjective circumstances are set out in a report of a psychiatrist which although not adopted and subject to testing, has not been challenged by the Crown as a reasonable basis upon which to proceed to sentence. He is described as a 29 year old Kurdish Iranian male who arrived on a boat six years ago as a refugee. He was given a bridging visa. He was working in the six months prior to his arrest as a steel fixer. He said that his mental state had been weak at the time of his offending due to drug use. His isolation and the situation that he had left behind in Iran where he felt scared and targeted by Police. He said that he had nothing to go back to in Iran and although he had told the psychologist in a previous interview a year ago that he intended to return to Iran, the circumstances have changed because the government had confiscated his family's land and assets and the government was targeting not only Kurdish people but young people generally and he was fearful of ongoing prosecution if he returned to Iran. 10. He had been taking Seroquel and his psychotic medication and had been on a Methadone treatment program. He was diagnosed as having a substance use disorder and he was intoxicated with crystal methamphetamine at the time of the alleged offending. He also described psychotic symptoms of a major depressive disorder according to the psychiatrist and he remains vulnerable to a relapse of illness particularly when exposed to significant stressors. He has been under regular monthly review by a psychiatrist while in detention. 11. In summary, he had experienced social isolation and adversity since arriving in Australia as a refugee and suffered from depression and that had been compounded by drug dependence and psychotic symptoms so that his lifestyle appeared to be chaotic. His accommodation was unstable at the time of his arrest and not surprisingly, the psychiatrist recommended that he would benefit from ongoing treatment, monitoring of his mood disturbance and any re-emergence of symptoms of psychosis and medication prescribed accordingly. 12. As the evidence establishes, he has not had his freedom or liberty at any time since his arrest on 27 March 2016 and a significant part of it has been in what is described in the authorities as quasi-custody which is a matter to be taken into account. The term of imprisonment should be modified by a finding of special circumstances given his demonstrated need for continuing treatment and rehabilitation and I take into account the greater part of the period in quasi-custody having regard to the objective seriousness of the matter being at the lower end of the range in my view, and in the light of the facts to which I have referred, the orders that I make are: 1. The offender is convicted of the offence. 2. I impose a sentence of imprisonment of 21 months to commence on 27 September 2016, expiring 26 June 2018. 3. I impose a non-parole period of 13 months expiring on 26 October 2017 4. I find special circumstances. Note – These extempore remarks were revised without access to the court file. ********** 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: 09 September 2019