Director of Public Prosecutions v Abdo

[2018] VCC 65

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02082

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALI ABDO

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2018
DATE OF SENTENCE:	8 February 2018
CASE MAY BE CITED AS:	DPP v Abdo
MEDIUM NEUTRAL CITATION:	[2018] VCC 65

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited: DPP v Luca [2016] VCC 1573
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward
For the Accused	Ms M. Greener

HER HONOUR: 

1Ali Abdo, you have pleaded guilty to one charge of riot.  The maximum penalty for this offence is ten years' imprisonment. 

2The general facts of the riot are now well understood.  On 24 October 2016 His Honour Chief Kidd sentenced a co-offender, Jonathon Luca, in relation to this matter and I adopt His Honour's remarks regarding the overview of the events which occurred and which form the basis of the charge against you.  They are as follows.

3On 30 June 2015 200 to 300 prisoners at the Melbourne Remand Centre were involved in the largest riot in Victoria's correctional history.  Evidence indicated the protest by prisoners on 30 June 2015 was planned with the intent of disrupting the routine of the prison to force authorities to suspend, amend or reverse the no smoking policy.  A total smoking ban was due to commence in Victorian prisons on 1 July 2015.

4Peaceful protests were held by prisoners at the MRC in the days leading up to the riot. 

5During the riot, fences were breached.  Prison vehicles, including the use of a tractor, were used to cause damage to gates and fences.  The Central Movement Control or CMC was stormed twice.  The canteen was looted and multiple accommodation and non-accommodation units were significantly damaged. 

6That damage included the used of makeshift weapons to smash windows, damage to equipment and fixtures inside the units and the lighting of fires, both inside and outside the units.

7It took 15 hours for prison officers, police and fire brigade personnel to restore order to the prison and secure all prisoners.  The riot appeared to have been in an acute state for a shorter period of time from approximately 11.40 am, when some prisoners began congregating and chanting for tobacco, through to the later afternoon when the CMC was breached for a second time.  It had, essentially, ceased by 11 pm.

8Prison officers and public servants were forced to flee the grounds for their own safety.  A number of prison officers reported minor physical injuries including inhalation of chemical agents which were thrown back at them by prisoners.  Other minor injuries occurred during physical clashes with rioting prisoners at the CMC.

9Some staff reported psychological injuries such as recurring nightmares and ongoing stress as a direct result of the threats and fear inflicted by the prisoners.

10A large number of the prisoners then had to be relocated after the riot to other prison facilities due to large parts of the MRC no longer being operable.  As at 11 April 2016 the Department of Justice had incurred 12.1 million dollars' worth of costs relating to the riot of which approximately 6.89 million related to repairs and maintenance at the MRC.

11I have been provided and have read 14 victim impact statements from prison officers at the MRC.  These were people performing a difficult job and whose safety was compromised.  Unsurprisingly, the riot has had a major impact on their lives.  Several have suffered from sleeplessness and flashbacks.  Work relationships and family relationships have been adversely affected.  Many no longer feel safe in their workplace.  In short, the psychological impact on their lives has been considerable.

12The Chief Judge in the case of Luca[1] detailed the legal principles that attach to the offence of riot and I adopt his comments:

"Riot involves an assembly of people intending to assist each other, by force if necessary, in pursuit of a common purpose;

The offence of riot is a very serious offence. It derives its gravity from the simple fact that the persons concerned were acting in numbers and using those numbers to achieve their purpose. It involves public alarm because it is currently or potentially dangerous. It usually carries with it an inherent danger of injury to persons or property or both;

The level of violence used (in relation to persons or property) and the scale of the violence are factors relevant to sentence;

In assessing the culpability of an individual participant, it is wrong to take the acts of the individual participant in isolation. That is because the acts of the individual were not committed in isolation and this is the very fact that constitutes the gravity of the offence. A person who participates in a riot bears some responsibility for the collective damage and harm caused. The sentencing Judge should nevertheless take into account the extent to which the offender was to blame for the offence, and the part which he had played in the commission of the offence;

Great weight should be given to the consideration of general deterrence for the offence of riot. The sentences must make it less likely in the future that others will follow in joining in a riot;

The offence of riot is more serious where the rioters act against law enforcement officers in the execution of their duties;

The fact that the riot occurred in a prison setting confirms the importance of general deterrence. Even though the authorities which support the proposition that deterrence assumes particular importance where offending takes place in a prison setting are generally concerned with prisoner upon prisoner assaults, the rationale behind this principle must apply with similar force to a prison riot. The courts cannot permit the law of the jungle to take hold in prisons".

[1]DPP v Luca [2016] VCC 1573

13Undoubtedly, this riot was a serious example of such an offence.  It involved a large number of prisoners.  It persisted over many hours and caused millions of dollars damage.  It was a vigorous attack on the proper operation of the prison.  Law enforcement officers were confronted and had items thrown at them and it generated a high level of fear and alarm.

14I turn now to your particular involvement.  Your personal involvement in these events sees you participating for nearly five hours in total, that is, between 12.07 pm and 4.56 pm, and at least from 1.04 pm, so for approximately four hours, you were more actively encouraging your co-offenders and more actively participating yourself. 

15You were partially disguised with an item of clothing around your head and face to conceal your identity, as well as wearing gloves. 

16You can be seen dancing around, waving and clapping to cheer on other offenders.  You assisted to open a gate to allow a motorised tug vehicle to drive through it.  You beckoned the driver of the tug and encouraged him to drive through the gate.  You later encouraged the driver of a tractor who was involved in ramming fences.  You walked alongside the tractor as it moved from area to another. 

17You were part of those who entered the CMC after the second breach of that area later in the day.  You were part of looting the canteen.

18At the point of the second breach of the CMC you came into possession of a long metal pole and you hit this against the wall, though fortunately, this did not cause actual damage.  You succeeded, however, in sliding the metal pole under the CMC wall where you attempted to cause damage, though again, you were unsuccessful.

19You were part of the large group of prisoners who came through the CMC towards the gatehouse where you ran towards the gate before retreating after officers were forced to deploy tear gas.  At that time prison officers were on the other side of the fence. 

20Even after those events, and the deployment of tear gas, you were later a passenger on a tug as it was joyriding in area 4 yard including jumping up and down on the back of the vehicle and banging the roof as it was driven around.

21Comparison between you and others who have been sentenced for this riot is difficult in some respects.  As with most offences there will always be more and less serious examples of the commission of the offence or of roles played by multiple offenders.  Here those difficulties are more pronounced given the large number of persons involved and the duration of these events.

22The prosecution accept, however, that you are not one of the high level offenders involved in actually causing the major damage and nor were you involved in the planning or organisation of the riot.  I accept that that is the position.

23I accept also, as your counsel said, that you were a relative newcomer to imprisonment, however, you went along with events as they unfolded, demonstrating by your presence and your enthusiastic encouragement and participation, you assent to the events and your willingness to be involved.

24By way of comparison with the case of Luca for the purposes of parity it is hard to say, definitively, whether your culpability in the actual offence is greater than or lesser than Mr Luca.  Your involvement early in the period of the riot was less but your involvement in the later part of the period of the riot was more.  You did not actually cause damage as he did but your participation lasted for a longer time.

25Finer distinctions are outlined in both counsels' submissions which were exhibited on the plea and which I have taken into account. 

26Issues of parity, of course, do not only take into account the various levels of participation in the offence, they take into account the personal circumstances pertinent to an offender.  Some of the matters which benefited Mr Luca, such as his youth, his relative lack of prior offending and his early plea, do not apply to you.

27In a situation of riot, general deterrence and just punishment must loom large and I have taken those principles into account.  The real issue in terms of sentencing you relate to specific deterrence and your prospects of rehabilitation in the face of your prior criminal record and your subsequent matters.

28You are now 30 years of age.  You are the oldest twin in a sibship of four.  You had, what was described, as an unremarkable and stable upbringing and you still enjoy the support of your family.  You did not find school easy and have some issues with literacy, however, you successfully completed an apprenticeship as a spray painter.  You were gainfully employed throughout your 20s until a motor bike accident in 2009. 

29You have one prior court appearance only, that being in September 2013.  It was a consolidation of a number of matters some of which are relevant to the matter before me.  That prior appearance involves driving matters, possess and use methamphetamines, amphetamine, cannabis and another unknown hallucinogen. 

30Of particular relevance are four charges of resisting police, three charges of assaulting police and one charge of acting in a destructive manner in a police gaol.

31You received a cocktail sentence on that occasion being: a term of imprisonment of 115 days which equated to your pre-sentence detention; a community corrections order of 15 months with various conditions aimed at your treatment and rehabilitation; a fine of $2,000 and disqualification of your licence for three years.  It was a significant first entry into the criminal justice system at a time when you were aged 26.

32After release from that term of imprisonment you failed to take up the community corrections order opportunity.  You in fact breached that order by way of non-compliance and by committing numerous further offences.

33On 1 June 2015 you were arrested and remanded for a number of those outstanding matters.  One month after your remand you were involved in the riot. 

34You were dealt with for the breach and the new offences over two appearances in the Sunshine Magistrate's Court during September 2015.  In relation to breaching the community corrections order, which was the one imposed in 2013, you were re-sentenced to a wholly suspended term of imprisonment. 

35In relation to the many new offences committed in breach of that same order you received a term of imprisonment of 210 days, with 114 days pre-sentence detention noted, plus a community corrections order for 18 months.  Therefore you were soon released from custody, again with the court's intention and your agreement, that you would commence a community corrections order.

36Upon your release you again failed to comply with that community corrections order and you also breached the suspended sentence.  Again, these breaches were by way of both non-compliance and further offending. 

37On 7 June 2016 you failed to appear at a committal mention in relation to the riot matters despite being on bail.  Then on 15 June 2016 you committed a series of serious offences involving a theft of a car, ramming a police van and driving at police officers and then driving through an outdoor eating area demolishing chairs and tables. 

38There was a police pursuit through the northern suburbs of Melbourne, then on to CityLink before police called off the pursuit on Kings Way.  You were eventually remanded on those charges and the riot in August 2016. 

39For those matters you were then sentenced to 200 days imprisonment on 7 March 2017.  Those 200 days were declared as pre-sentence detention as the time you were sentenced. 

40You have therefore been on remand solely for the riot charge since 8 March 2017 and have therefore accrued 338 days pre-sentence detention attributable to this matter. 

41Although not relevant as prior convictions, the matters heard in September 2015 and March 2017 and the sentences imposed, and your performance in relation to those, are clearly relevant to your prospects of rehabilitation.

42In considering your rehabilitation I accept your counsel's submission that your past offending has been inextricably linked to your drug use.  A return to drug use would constitute a serious risk of further offending by you.

43I have read a report from Nadine Howard dated 18 July 2017 which was apparently prepared for the purpose of a bail application.  Your counsel was given an opportunity to consider that report during the course of the plea.  In part, it reflects her outlines of submissions, in any event.

44You experienced a traumatic motor bike accident in 2009.  You sustained broken femurs and broken wrists.  Your period of rehabilitation was sustained including spending 18 months in a wheelchair and then 16 months on crutches.  You lost employment and became depressed.  Despite this, it was apparently not at that time that you resorted to illicit drug use. 

45The precipitating event which saw your entrée to illicit drug use was the breakdown of a long-term relationship in 2013.  This occurred at around a time when you were literally and figuratively getting back on your feet after your lengthy period of rehabilitation.  That relationship dissolved in part because your partner had an abortion without telling you.

46Although, objectively, you were still a young man, no doubt at that time you felt somewhat hopeless about your future. 

47Your entry into drug use at that time has seen you become a user of methamphetamines, cannabis and alcohol since those events around 2013.  The grip of those drugs is well known and it seems the hold they took on you was a strong one, given that despite two periods of imprisonment, you resorted to them each time you were released.

48You have therefore not been engaged in drug or alcohol counselling in the past nor in any psychological counselling.  You have struggled with anxiety and depression in custody and have been prescribed with anti-depressants.

49In light of that history, in terms of your rehabilitation prospects, these are guarded at best.  You do, apparently now, recognise the relationship between your offending and drug use.  It will be a matter for you to resist the grip of addiction upon your release. 

50In considering your prior matters and your subsequent offending there does also seem to be a flavour of defying authorities.  That same attitude is, of course, part and parcel of the circumstances of the riot, and although not a charge, I note also your failure to appear when on bail for this serious offence. 

51I must also take into account the fact that when given opportunities to undertake a community corrections order, and also to be placed on a suspended sentence, you have not availed yourself of these.  That has been so even after a significant stint in custody where, presumably, you were drug-free for a period of time.

52I accept, however, that you have not now offended since June 2016 and that you have now been in custody for approximately 21 of the last 37 months. 

53Further, I accept what your counsel says, which is that you are now a slightly older man, that you have a new relationship and a strong desire to have a family and to be a provider for your fiancé and any future children.  You will reside with your fiancé and her family upon your release. 

54You are fortunate to have the support of your family, your father and youngest brother being in court for the plea, and I note your father is again present today.  You also have an offer of employment as a labourer from another brother. 

55Your mother is supportive of you, however, her situation has changed also since you have been incarcerated, namely, she has had a diagnosis of breast cancer 12 months ago and two heart attacks in the last four months.  No doubt, this is causing you anxiety as you are away from her. 

56I have been provided with three drug screens from the last two months which support your claim that you have been drug-free since being remanded in August 2016. 

57These personal matters do shed some favourable light on factors which should motivate you towards your rehabilitation. 

58I accept that imprisonment has been onerous because you were in a period of lockdown for two months during your detention after the riot.  As stated in the decision of Luca by the Chief Judge any benefit of this is, of course, moderated because you were in part to blame for that outcome. 

59However, I was told you were also at Port Phillip Prison when fires occurred there in November 2017 and I understand you were in lockdown from 29 November to some time in January 2018 meaning you did not receive visits or access to telephones during that time. 

60You have undertaken several courses during your period of incarceration, both in relation to employment opportunities, but more importantly in my view, in relation to healthy lifestyle planning and substance use. 

61Though you are not a youthful offender, you are still a reasonably young man with a future ahead of you. 

62In considering the issue of totality, I take into account that you have completed the entirety of the sentence imposed on 7 March 2017 and therefore have lost the opportunity of any concurrency being allowed on the sentence for the riot matter.  This, too, is complicated however because the delay in resolution of the riot charge has been largely your choice with a late plea of guilty entered in October 2017. 

63You are still entitled to the benefit of your plea of guilty even though it was delivered at a later stage.  In this case, given the amount of material and number of potential witnesses involved in any trial, the utilitarian and practical benefit is real.  It is difficult to determine how much your plea of guilty reflects true remorse, however, I do take it into account, at least as a show of some remorse, and an acceptance of your responsibility for your part in this offending. 

64I do not believe that, in all the circumstances of this case, that a combined sentence of imprisonment and a community corrections order is appropriate.  In my view, given the matters I have outlined, the only appropriate sentence is one of imprisonment with a non-parole period.

65If you could stand please, Mr Abdo.  On the one charge of riot, I sentence you to a term of 30 months imprisonment. 

66I direct that a period of 19 months be served before you are eligible for parole.

67I declare a pre-sentence detention of 338 days as having been served and attributable to that sentence.

68In relation to s.6AAA, had you not pleaded guilty in relation to this matter, the sentence I would have imposed would have been four years imprisonment with a two year non-parole period. 

69Mr Hayward, can you remind me whether there were any other orders sought?

70MR HAYWARD:  There are no other orders sought.

71HER HONOUR:  All right, thank you, that completes the matter.  Any issues, counsel?

72MR HAYWARD:  No.

73MS GREENER:  As Your Honour pleases.

74HER HONOUR:  Right, thank you.  Thank you, I will leave the Bench and Mr Abdo can be removed, thank you.

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