Director of Public Prosecutions v Braithwaite
[2017] VCC 960
•7 June 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-02067
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDON BRAITHWAITE |
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| JUDGE: | HIS HONOUR CHIEF JUDGE KIDD |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 March, 9 May 2017 |
| DATE OF SENTENCE: | 7 June 2017 |
| CASE MAY BE CITED AS: | DPP v Braithwaite |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 960 |
REASONS FOR SENTENCE
---Subject: Criminal law – Sentence.
Catchwords: Charge of Riot – Metropolitan Remand Centre Riot June 2015 - Youthful offender – Early guilty plea – Fair prospects of rehabilitation - Role in offending – Significant role in offending but not classified as a ringleader – Considerations of totality and parity.
Legislation Cited: Sentencing Act 1991, s 6AAA.
Cases Cited:Director of Public Prosecutions v Luca [2017] VCC 1573; Director of Public Prosecutions v Braithwaite [2015] VCC 1655; De Castres v The Queen; Kent v The Queen (2011) 33 VR 493; R v Mills [1998] 4 VR 235; El-Waly v The Queen [2012] VSCA 13; Postiglione v The Queen (1997) 145 ALR 408.
Sentence: 23 months’ imprisonment with a non-parole period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Locke | Mr J Cain, Solicitor for Public Prosecutions |
| For Accused | Mr H Rattray on 16 March Mr R de Kretser on 9 May | Paul Vale Criminal Law |
HIS HONOUR:
1Mr Braithwaite, you have pleaded guilty to one charge of Riot which carries a maximum penalty of 10 years' imprisonment. You were a remand prisoner at the Metropolitan Remand Centre (‘MRC’). You were born on 14 June 1996. Your offending occurred on 30 June 2015 when you were aged 19 years of age. You had just turned 19 years of age. You are now 20 years of age.
Circumstances of offending
2A prosecution opening was tendered on the plea. No issue was taken with the facts as such. It is therefore sufficient for me to provide an overview of the summary of facts.
Overview of events
3On 24 October 2016, I sentenced one of your co-offenders, Johnathon Luca, for his role in this riot.[1] The prosecution opening as to the overview of the riot was in the same terms as in your case. I adopt the remarks I made regarding the overview of the events that occurred on 30 June 2015, which are as follows.
[1]Director of Public Prosecutions v Luca [2016] VCC 1573 (‘Luca’).
4On 30 June 2015, 200 to 300 prisoners at the MRC 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. Peaceful 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 a tractor) were used to cause damage to gates and fences, the Central Movement Control (‘CMC’) was stormed twice, the canteen was looted and multiple accommodation and non-accommodation units were significantly damaged. That damage included the use 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.
6It 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 late afternoon, when the CMC was breached for a second time. It had essentially ceased by 11pm.
7Prison 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. Some staff reported psychological injuries such as recurring nightmares and ongoing stress as a direct result of the threats and fear inflicted by the prisoners. A 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.
8As at 11 April 2016 the Department of Justice had incurred $12.1 million worth of costs relating to the riot, of which approximately $6.89 million related to repairs and maintenance of the MRC. In all 102 offenders have been charged in relation to the riot.
Your specific role
9You were housed in Cell 10 of the Attwood Unit, which is located in Area 1 of the MRC.
10At the 11:45am routine muster, you and a number of other prisoners from Areas 1, 2 and 3 remained in the outdoor yard area and refused to return to your cells, in protest against the impending cigarette bans. Prisoners not wishing to participate in any protests returned to their cells at this point.
11At 12.07pm, you started preparing to cover your face using a light blue piece of material.
12The prisoners remaining in the outdoor yards congregated near the point where the three yards converged. One prisoner would kick the fence while the others watched, with a handful of prisoners taking turns to kick the fence.
13The fence was observed to bow with the applied force until it was breached, firstly between Areas 2 and 3, and then between Areas 1 and 2. At this point, you exited the Area 1 yard through the damaged fence and entered the yard of Area 2.
14After the fences to both areas were breached, prisoners converged on the basketball court of Area 2. A number of prisoners started inciting the crowd and encouraging further action. The group then moved back through the damaged fence, into the yard of Area 3 where they massed together. At this location, you removed your blue t-shirt and fashioned it into a bandana type mask in an attempt to hide your identity from surveillance cameras. You, together with a large mass of prisoners, then moved toward the CMC.
15The CMC is the centrally located area of the prison where all the prison yards within the prison meet.
16You could be seen in amongst the large mass of prisoners and, at different times, you were inciting and encouraging inmates as they were demonstrating at the main gate. After a short period of time, prisoners forced open the CMC gates by pushing and smashing them with poles removed from the ground. You and the other prisoners moved through the CMC breaking the windows, furnishings and safety equipment inside the building. You were identified during this time as instigating and directing others to smash certain objects.
17From the CMC the mass of rioting prisoners continued to smash the gates and breach areas of the prison they were not authorised to access. A group of prisoners reached the Prisoner Shop (Canteen) area, where a roller window was forced open and prisoners were able to access the items inside. You were identified entering the Canteen. After spending several minutes in the area, you were sighted running from the Canteen carrying a box of Coca-Cola soft drink cans and wearing sunglasses.
18You returned through the CMC to Area 3 where you remained with the large mass of rioting prisoners, moving amongst them. After a while, prison officers were able to re-enter the CMC. The group of prisoners, upon realising this, moved forward to attack the CMC again. Tear gas was deployed to force the prisoners back. Approximately at 12:40pm, you were seen retreating through the fence to Area 2, apparently suffering from effects of the tear gas.
19The prisoners then started forcing entry into accommodation units located within Areas 1, 2 and 3 where staff had locked themselves in for safety. The prison officers had to evacuate the units via rear access doors, narrowly escaping contact with rioting prisoners.
20At 12.53pm, while in Area 2, you dragged a food trolley toward the fence connecting with Area 1. You forced the trolley into gates connecting with the race leading to the CMC. You did not gain access through the gates, the trolley tipped over and was left there.
21Between approximately 12:54 pm and 1.30 pm, you were seen moving around inside the Ballan Unit, the Attwood Unit, and then the Albion Unit in where you then carried one of the doors to the console outside where it was later thrown into the gardens outside the Unit. Shortly after leaving the Albion Unit, you were seen carrying a metal pole, or similar, as a weapon.
22You then entered the Bellbridge and Billingham Units where you damaged furniture and equipment, and rifled through paperwork.
23You then continued to move around into different areas of the prison with the rest of the rioting prisoners. Around 10:30pm, you were seen carrying a mattress out to the main yard where prisoners had congregated prior to surrendering.
24It is also clear from your subsequent admissions which the prosecution outlined in the opening, and from the relevant CCTV excerpts relied upon by the prosecution, that you were also involved in throwing some equipment on a fire outside.
25The riot continued past midnight and prisoners were taken into custody by prison staff through the night and early hours of the following morning.
26As a consequence of the riot and sabotage of the MRC, investigators have reviewed recorded prison Arunta telephone calls. Between 9 and 13 July you made a number of phone calls to friends and to your mother’s telephone number. You boasted about your participation in the riot, damaging property, burning equipment and bedding, breaking other prisoners out of cells and to returning to your unit and not remaining with the rest of the surrendering prisoners.
27During the course of these conversations, you indicated to the persons receiving the calls that the intention of the riot was to force “them” (being the prison authorities) to restore smoking privileges, but that they were too late as "it had already went through Parliament".
Victim Impact Statements
28Some 14 Victim Impact Statements were tendered by the prosecution at the plea hearing. They have been made by Corrections officers who were working at the MRC. While there are more statements before me than when I sentenced Luca, the themes are the same. The overwhelming themes arising from these statements is that the riot had a major impact on the staff at the MRC. Several have reported difficulties in both their professional and personal lives since the riot. Some have experienced flash-backs, which have disturbed their sleep. The stress has affected their satisfaction at work, and has also affected their home life and relationships with their families. Some sustained physical injuries, although it is not put by the prosecution that you were responsible for inflicting any of these injuries directly. It has affected the way that they now interact with the prisoners on a day-to-day basis.
Legal principles
29In Luca, I detailed the legal principles that attach to the offence of riot[2]. I repeat those principles here:
·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 sentence 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.
[2]R v Caird (1970) 54 Cr App Rep 499, 505-508; R v McCormack & Ors [1981] VR 104, 108-109; R v Sari [2008] VSCA 137 [62]-[65].
Gravity of the offending and your role
30As to the gravity of the overall riot I repeat what I said when sentencing your co-offender Luca.
31I said then and I say it again that I consider this to be a very serious example of this type of offence. It is hard to make a comparison of riot offences given there are so few. But the sheer scale of this prison riot makes this riot a very troubling disturbance of a very high order. That is so whether it is measured by the number of participants involved in the rioting group (200 to 300 prisoners), its duration (many hours over the course of a day), the fact the rioters acted against law enforcement officers or prison officers in the execution of their duties, the breadth of personnel required to restore order to the prison and secure all the prisoners (namely prison, police and fire brigade personnel), the potential danger to which these officers were exposed, the level of alarm which this riot generated, the sense of complete anarchy depicted in the CCTV footage, or the breathtaking scale of damage and loss actually caused.
32While minor physical injuries and psychological harm was caused, thankfully this was not a riot which resulted in serious physical harm or injury. I take this into account but, self-evidently, a prison riot of this scale carried with it a very high degree of risk to the personal safety and security of the prison officers and other public servants involved. It caused significant fear.
33As to your specific role I accept you were not a ringleader. Your participation was not pre-mediated. You did not physically attack any prison or police officer and you did not physically engage in violence against any person.
34That all said, you played a significant role:
·Your participation was protracted spanning as it did some 12 hours;
·You encouraged other offenders to participate;
·You were involved in damaging prison property and buildings;
·You used a disguise;
·You armed yourself with a weapon;
·Your were involved in breaching a number of prison units;
·You participated with the rioting group in a threatening manner towards prison officers, particularly during the breach of the CMC;
·At one point you were involved in throwing something on a fire outside.
35Both the prosecution and the defence addressed me at length in relation to your role. They did this by reference to the role of Johnathon Luca. The prosecution submitted that you played a greater role than that of Luca. The prosecution submitted your role can be described as proactive and prolonged – certainly longer than Luca.
36Your counsel submitted that whilst your involvement in the riot spanned a significant duration, your role and moral culpability must be seen in the context of an immature young offender who had only been in adult custody for a short period of time before the riot occurred. It was submitted you were vulnerable to some peer influence - with your emotional immaturity you found yourself ill‑equipped to desist from engaging in this riotous and destructive behaviour with more mature and more seasoned criminal offenders.
37Your counsel relies upon a psychiatric report from Dr Lester Walton dated 15th October 2015 which was relied upon at your plea hearing in a matter before Judge Cohen, which I will come to shortly. You were described by Dr Lester Walton as having a "lengthy history of anxiety and depression which likely reaches back to your rather troubled childhood". Dr Walton described you as "somewhat ill-educated" and a "psychologically immature 19 year old". He also made reference to the difficulties you have in adapting to change.
38I broadly accept the submissions of your counsel. Indeed I indicated on the plea that I was left with the impression – from watching the CCTV footage – that while you were clearly a willing participant in the riot, you were more of a follower than someone at the forefront. Your behaviour and actions appeared at times to be relatively immature and unsophisticated. By way of example, while you did disguise yourself, the fact remains that for much of your activity you were in fact undisguised. On other occasions your encouragement was in the form of standing back and excitedly jumping around and gesticulating.
39While Luca’s role was confined to under three hours, he was more vigorous in the prosecution of the riot than you were. He appeared to be more determined, and his encouragement of other prisoners more forthright.
40That all said, you engaged in riotous behaviour for a very lengthy period of time – some 12 hours – and you still did so with a level of enthusiasm and excitement. You clearly identified yourself with the rioters and with the riot itself. So much is clear from the telephone calls you made after the event.
41Your counsel submitted that ‘in the final wash up’ you and Luca are ‘not far from one another.’ Overall, I think you sit above Luca, but not by much.
Criminal history
42Your prior criminal history consists entirely of Children’s Court appearances. Between 16 May 2011 and 12 December 2012, you accrued 29 findings of guilt over four Court appearances (although none led to conviction). The offences included armed robbery, aggravated burglary and attempted armed robbery and one of possess a prohibited weapon. Some of the offending was committed in company.
43Subsequent to these events, on 18 November 2015, you were sentenced by Judge Cohen to 18 months’ detention in a Youth Justice Centre for offences including recklessly causing serious injury, armed robbery, reckless conduct endangering serious injury and burglary[3]. You were 18 years of age at the time of this offending. The offending took place over one night whilst you were in company with a group of younger offenders. Essentially, you went on an escapade damaging property, stealing property and engaging in reckless and dangerous behaviour which involved the discharge of a number of flares, one being thrown into a parked bus occupied by the driver. When confronted by a victim over some items stolen from his garage he was assaulted by the group and you stabbed the victim.
[3]Director of Public Prosceutions v Braithwaite [2015] VCC 1655 (‘Judge Cohen matter’).
44I was informed by defence counsel that you have a number of outstanding charges before the Magistrates’ Court. These have also been detailed in a Pre-Sentence Report (Suitability for Youth Justice Centre Order), which I will refer to below in more detail. This offending is unproven. The offending is alleged to have occurred after your release on Youth Parole. They are not subsequent convictions. I raised with your counsel at the plea how I should take them into account given that they remain unresolved. Your counsel stated that he would not be submitting to me that you have no outstanding matters before the courts. He indicated that he would not be submitting that you have ‘turned a new leaf’ since your release. He said that these outstanding matters precluded him from making those submissions. It seems to me that the charges are only relevant insofar as they explain your counsel’s submissions. Beyond that I will not have regard to these unresolved charges. In the circumstances, the nature of the unproven charges is irrelevant.
Personal details
45Mr Braithwaite, you have had a difficult upbringing. You were born in Townsville, Queensland. Your mother and father were aged 17 and 18 years respectively when they had you. You were their only child. They separated on your first birthday and thereafter you father was largely absent from your life.
46It was put to me that you were involved in an incident of abuse by a family friend and that family friend was an associate of your father’s. A complaint was never raised in relation to this incident. From a young age, you have showed resentment and negativity towards your father and you have never really had a male role model.
47Your primary school years were unsettled – moving between Townsville and Melbourne to pursue employment opportunities. You were a poor student and you still continue to have problems with literacy.
48You experienced behavioural problems and started drinking alcohol and using cannabis in 2009.
49Your mother tried to break your cycle of poor behaviour by enrolling you at Berengarra School, in Box Hill. This school caters for people with emotional and social needs. However, your time at Berengarra was not productive you did not make it past Term 2.
50You only completed year eight at high school before leaving and commencing employment.
51You left the family home at 15 and lived between Melbourne and Queensland for the next three years. Your accommodation was unstable – a mixture of friends, family, private rental accommodation and at times you were homeless.
52At the age of 14 or 15 years, you developed a full scale drug addiction and this was the catalyst for criminal offences which brought you before the Children's Court in mid-2011.
53You entered into a relationship with a Paige Sutton Smith when she was 16 years of age and you were 15 years of age. In January 2014, Ms Smith gave birth to a boy. Your relationship broke down after the birth of your child.
54During this period, you managed to secure employment at a number of different places and I will return to this.
55Unfortunately at some point you relapsed into regular your drug use and this led into your offending for which you were sentenced by Judge Cohen.
Youth
56You were 19 years of age at the time of the offending and you are now 20 years of age. The youthful offender principles apply, moderating the need for general deterrence, and emphasising the need to promote your rehabilitation.[4] That said, while your youth remains an important consideration, and requires more weight to be given to encouraging rehabilitation than would be the case for an older offender, the nature of this offending means that the importance of youth must give some ground to the consideration of general deterrence.
[4]R v Mills [1998] 4 VR 235, 242 (Batt JA).
Plea of Guilty and utilitarian benefit
57You entered a plea of guilty at the earliest available practicable opportunity.
58There is a signification utilitarian benefit to the community for which you receive a discount. It shows a willingness to facilitate the course of justice.
Remorse
59Your counsel at the first plea hearing explicitly eschewed any reliance upon remorse, in the light of your Arunta telephone conversations in the period following the riot. The content of those calls does not speak of a man who is contrite. They seem to show that, even with the benefit of some reflection, you were still excited by and proud of your criminal behaviour.
60Your counsel on the second plea hearing day did submit there was evidence of remorse as reflected by your admissions in your record of interview and the plea of guilty. The record of interview was conducted on 23 September 2015, some three months after the riot and the Arunta telephone calls. In that interview you made extensive admissions about what you were wearing at the time of the riot and about the actions you involved yourself in. You provided an explanation that you just went along with what was happening.
61I also have before me a letter from your mother which also refers to your expression of remorse.
62In the circumstances, I am prepared to accept that you have shown some genuine remorse - albeit clearly not experienced by you in the immediate aftermath of the riot, as the telephone calls demonstrate.
Prospects of rehabilitation
63Your counsel frankly acknowledged that you have a history of becoming involved in group offending.
64Your Children’s Court criminal record is substantial. They involve relevant– violent - offences. And as I said earlier, some of these matters were committed in company.
65You were on remand at the MRC for the Judge Cohen offences at the time of the riot. While these are therefore subsequent matters, I note that being on remand for these serious charges - which also involved group offending - did not deter you from engaging in this riot. That is a concern to me when I come to assess your prospects of rehabilitation.
66The explanation for your involvement in this riot is that because of your emotional immaturity you found yourself ill‑equipped to desist from engaging in this destructive and criminal group behaviour. On the one hand this explains your offending, and to a degree places your moral culpability at a lower level than an older and more mature offender. Yet on the other, it raises a serious question about your capacity to withstand peer pressure in the future. I note it was in part the same explanation proffered for your involvement in the Judge Cohen matters. Any sentence I impose must specifically deter you from falling into such criminal wrongdoing. It must encourage you to learn to adequately control your emotions. I must also protect the community from you.
67You also have a drug abuse history which needs to be controlled. I am told that your drug problem escalated in early 2017 while on Youth Parole and continued up until you were remanded in March this year. Since that time you have been in ‘forced detoxification”.
68There are, however, some matters which reflect positively on your prospects.
69You are still very young – 20 years of age.
70A Pre-Sentence Report for suitability for a Youth Justice Order was initially sought by your counsel at the first plea hearing. I ordered this report because you were about to turn 21 years of age, and there was a complete lack of plea materials concerning your progress in custody and on Youth Parole before me. The authors of the report found you to be unsuitable for youth detention. As your counsel abandoned his original submission that I should impose a youth justice detention order, and now accepts that adult gaol is the only available option, I do not need to dwell on the report. I do note, however, that your overall performance and progress on parole was said to be satisfactory. You attended the majority of appointments and engaged well with your workers. You displayed insight into your offending (i.e. the Judge Cohen matters) and had identified catalysts to your offending behaviour including substance use and negative peer associations.
71The report also notes that you have had an extensive employment history and have sustained employment in plastering, painting, labouring, landscaping and in hospitality. Prior to being remanded, you were employed full time as a bricklayer. It seems to me that there is a work ethic in you, and some real employment capability.
72Two certificates of completion of courses which you undertook while at the Melbourne Assessment Prison in April 2017 were also tendered in the plea – including one in relation to managing your emotions.
73You have support from your mother and your stepfather, both of whom are in stable employment and offer stable support.
74You have the incentive to play an active role as a father to your son.
75Your counsel submitted that your prospects of rehabilitation are uncertain and that this Court may take a guarded view despite your youth. This is consistent with the prosecution submission. I am guarded about your prospects based upon your prior criminal history and your commission of this offence whilst on remand for the Judge Cohen matters. But, as I said at the plea hearing, I am far from being at the position where there is no hope for you. There are some encouraging signs for your future.
Totality and the Judge Cohen sentence
76When you were sentenced to Youth Justice detention for the Judge Cohen matter on 18 November 2015 your entire time in custody to that date – being 174 days - was reckoned to have been served under the Judge Cohen sentence. When you were charged in relation to this riot matter in December 2015, you were serving your sentence in a youth justice centre in relation to the Judge Cohen matter. You were released on Youth Parole in relation to the Judge Cohen matter in March 2016.
77There is thus no pre-sentence detention to be declared in your case for this riot matter. I note that in Her Honour Judge Cohen’s sentencing remarks she explicitly reduced the overall sentences she imposed on you because of the fact that as a result of the riot you found yourself at age 18 on remand in onerous adult prison conditions, often in 23 hour lockdown. You have lost any prospect of concurrency between the Judge Cohen sentence and the sentence for the riot matter. The principle of totality applies. I should give consideration to the total sentence that would have been imposed had all offences fallen for consideration on the one occasion. In doing so, I will take your time you have spent in custody in relation to the Judge Cohen matter into account under the principle of totality – including your pre-sentence remand and the manner in which it was served.[5]
[5]El-Waly v The Queen (2012) 46 VR 656, 673-674 [107]-[114].
Recent Renzella time
78Your Youth Parole expired on 24 February 2017. You were arrested and remanded in custody on fresh unrelated charges on 18 March 2017. Between 18 March 2017 and 9 May 2017 being the first plea hearing date in this matter –– you were in custody in relation to those fresh unrelated charges. The law says that this is not pre-sentence detention for this matter. While nothing was said on your plea about this, I take this period of time in custody into account in a general way lest it be that these charges are later withdrawn or you are subsequently acquitted.[6]
[6]R v Renzella [1997] 2 VR 90. See also Kheir v The Queen [2012] VSCA 13 [19]-[21]
79I remanded you in custody on 9 May 2017 in relation to this riot matter, so I will declare the period of time since that date as time reckoned to have been served in relation to this riot sentence.
Parity
80Parity is a relevant matter. In dealing with this issue, I must make due allowance for the respective criminality of each offender and I must make due allowance for their differing antecedents, personal circumstances and mitigating circumstances.
81The prosecution provided a table of sentences imposed on your co-offenders in this court.
82I have already talked about your relative culpability with Luca, the only co-offender who received any attention on the plea. I do not intend to refer to each matter personal to each of you. As to some of the other matters, you are younger and have shown more remorse that Luca. On the other, Luca’s prospects of rehabilitation are better than yours – though not be significantly so – and Luca’s priors are not as significant as your priors.
83Where your co-offender is already serving a sentence – like Luca - I must consider each component of the sentence imposed including the extra period of imprisonment which he will be required to serve as a result of the riot offending.[7]
[7]See Postiglione v The Queen (1997) 145 ALR 408, 441.
Sentencing
84For the offence of Riot you are convicted and sentenced to 26 months’ imprisonment.
85I set a non-parole period of 14 months – that is the minimum term you must serve. I declare that 29 days has already been reckoned as served under that sentence and direct this fact be entered into the records of the Court.
86Pursuant to s 6AAA of the Sentencing Act 1991, had you not pleaded guilty I would have imprisoned you for 44 months with a non- parole period of 27 months.
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