Director of Public Prosecutions v Cunanan
[2017] VCC 310
•24 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-02028
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUNAR CUNANAN |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 March 2017 |
| DATE OF SENTENCE: | 24 March 2017 |
| CASE MAY BE CITED AS: | DPP v Cunanan |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 310 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr Balek | OPP |
| For the Accused | Ms Kaddeche | Haines and Polities |
HIS HONOUR:
1 Junar Cunanan, you have pleaded guilty to one charge of Riot. The maximum penalty for this offence is 10 years imprisonment.
2 On 24 October 2016, the Chief Judge of this Court sentenced a co-offender, Johnathon Luca, for the offence of riot.[1] I adopt the remarks His Honour made regarding the overview of the events that occurred on 30 June 2015.
[1]Johnathon Luca [2016] VCC 1573
"On 30 June 2015, 200-300 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.
During 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 (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.
It 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 11.40am when some prisoners began congregating and chanting for tobacco through to the late afternoon when the Central Movement Control (CMC) was breached for a second time. It had essentially ceased by 11pm.
Prison 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.
As 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."
3 I now turn to your specific role as outlined in Part B of the Prosecution Opening. Your actions were captured on CCTV footage and I make the following points about your offending:
· Your actions span the period 11.40am to 5.21pm.
· You joined other prisoners near the fence of area 1 after declining an invitation from a prison officer to return to your unit. Several prisoners commenced kicking fences and within a short time the fences separating areas 1, 2 and 3 were breached. You walked with other prisoners through the holes in the fences.
· At 12:10 you walked with a large group of prisoners towards Central Movement Control (CMC). You made a half-hearted and short-lived attempt to disguise yourself by removing your windcheater and placing it around your head.
· At 12.23pm you entered the CMC after other prisoners breached the locked gates. You remained at the gate, holding it open for other prisoners to enter. You left and entered the CMC several times following this first entry. At one stage you were seen carrying breathing apparatus.
· At 12.28pm you entered the canteen and stole items, including a pair of sunglasses.
· At different times you are seen encouraging other prisoners in their behaviour.
· At 12.56pm you assisted in barricading the gateway entrance to area 2 by pushing a large stainless steel trolley to the gate. A short time later you stood adjacent to a fence separating Ballan and Bellingham units, which was being kicked by two inmates.
· You then spent some time in the Attwood Unit.
· At 2.05pm, a co-offender Kelly drove a Kubota tractor through the fence line between areas 3 and 4. You encouraged him by motioning and running alongside the vehicle.
· At approximately 3.10pm you spent a short time breaking up bricks, which had been placed in a trailer. You followed a group of prisoners into area 2 and members of that group threw bricks, rocks and poles at Prison Officers standing behind the gate between the Albion and Attwood units.
· At 3:36pm you were on the basketball court with your head covered by a white t-shirt.
· At around 4.15pm Area 4 was breached and you were seen standing near the fence with a white t-shirt covering your head. You were holding a red object which your counsel said was a Mag Light Torch.
· At 4.24pm you assisted in breaching the CMC unit again by pushing a motorised buggy at the gates with other prisoners. You entered the CMC facility wearing a white t-shirt over your head.
· At 4.42pm you joined prisoners in kicking at the CMC internal security fence. You directed prisoners away from the path of a buggy that was used to strike the CMC gate and breach it. This enabled access to the gatehouse.
· At 5.21pm you overturned a table tennis table in yard 3.
4 I have been provided with 14 victim impact statements from prison officers at the MRC. The riot 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 the lives of these officers has been considerable.
5 In the case of Luca, the Chief Judge detailed the legal principles that attach to the offence of riot. 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 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."
6 It is not disputed that this riot was a serious example of such an offence. It involved a large number of prisoners, it persisted over many hours, it caused millions of dollars damage, it was a vigorous attack on the proper operation of the prison, it involved confrontations with law enforcement officers who had items thrown at them, and it generated a high level of fear and alarm.
7 As far as your role in the offending is concerned, I accept that you were not one of those involved in the planning or organizing of the riot. Your contribution was confined to the acts and to the periods of time that I have already identified. The riot continued beyond this time. By 11pm it had ceased. Although I do not make any finding that you actually threw anything at the prison officers, you were present with a group of prisoners, some of who did throw items at prison officers.
8 Whilst I find that you did not play the role of a ringleader in the riot, you did play a significant role. You quickly joined in this riot as it gained momentum. You were involved for a period of 5 hours and this was during the time when the riot was in its acute phase. Your actions included encouraging others; entering the CMC at around 12.23pm; stealing property from the canteen; carrying breathing apparatus; assisting in barricading the gateway entrance to Area 2; encouraging co-offender Kelly to drive a tractor through the fence line between areas 3 and 4; breaking up bricks and standing with prisoners who threw them at prison officers; carrying around a Mag torch and assisting in the second breach of the CMC at 4.24pm.
9 You have a significant criminal history. It predominantly relates to dishonesty and drug offending. In 2007 you were convicted of firearms offences. You have received a number of imprisonment terms including a sentence in 2007 from this court of 30 months with an 18-month minimum term. In July 2014 you were placed on a 12 month suspended sentence at the Sunshine Magistrates’ Court for offending that included traffic methylamphetamine. It is an aggravating factor for the present offence that it occurred during the operational period of the suspended sentence. Presumably, you will be dealt with for that breach at the appropriate time.
10 Given this history, specific deterrence and protection of the community are relevant sentencing considerations.
11 There is a subsequent matter that is relevant to your personal circumstances. At the time you committed the present offence you were on remand for offending that occurred on 30 September 2014. On 30 September 2015 you pleaded guilty in this court to charges of traffic a commercial quantity of methylamphetamine, dealing with property suspected of being the proceeds of crime and related summary offences.
12 On 12 October 2015, Her Honour Judge Cohen sentenced you to an effective imprisonment term of 18 months, together with a 2 year Community Corrections Order (CCO). You commenced your CCO after completing the imprisonment term on 30 March 2016.
13 You are 38 years old. You were born in Manila in the Philippines. Your parents separated when you were a baby and you came to Australia with your mother when you were 12. Your mother remarried and you have her ongoing support together with that of your stepfather. You were living with them on your recent release from prison.
14 You did year 12 at Footscray Secondary College and then commenced an apprenticeship as an electrical fitter. Not long after turning 18 you commenced the use of heroin and this derailed your career prospects. You developed an addiction to heroin that has, to use your counsel’s expression, cost you dearly ever since. Over time your heroin addiction was transformed into an ice addiction. As is apparent form your criminal history you have a deep-seated and long-standing addiction to drugs. This explains why I am not optimistic about your future prospects. You have a significant criminal history and past attempts to defeat your drug addiction have been unsuccessful. You committed the present offence during the operational period of a suspended sentence and you have continued to use methylamphetamine whilst on the recent CCO.
15 There are matters in mitigation.
16 You entered an early plea of guilty. The plea is indicative of remorse. No witnesses have been required to give evidence and your plea has saved the community the expense associated with a criminal trial. You will be given credit for all these matters.
17 After the riot you were held for a number of months in lockdown. This means that you experienced hardship that was not experienced by all prisoners. However, as the Chief Judge said in the case of Luca – “the benefit here should be reduced by the fact that some of this hardship was, at least initially, self –inflicted in that it was immediately caused by the riot in which you participated. The credit or benefit you get for this is a question of degree.” In considering this matter I must also recognise that Judge Cohen gave you some credit for this in her sentence on 12 October 2015.
18 Parity 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. Importantly, I must also consider the actual punishment it appears likely the offenders in suggested comparison will undergo.[2]
[2] See Postiglione v R (1997) 145 ALR 408 at 441.
19 There are a large number of prisoners charged with this offence. Very few have been dealt with thus far. I have already referred to the case of Luca that has been finalised. The prosecution submitted that on an overall assessment of your respective behaviours, you are more culpable than him. I agree with that assessment.
20 In addition, Luca’s personal circumstances are stronger than yours. He was a young offender, had limited prior history and fair prospects for rehabilitation. However, since the commission of the present offence you have been dealt with for other matters and received a sentence of imprisonment coupled with a CCO. This is relevant because you completed the imprisonment component of the order at the end of March 2016, and with the present matter taking some time to resolve, you have lost the opportunity for any concurrency with the sentence that I will impose. There must be some moderation of sentence for this reason. I note that Luca, who was undergoing a sentence when he appeared before the Chief Judge, obtained the benefit of some concurrency and this needs to be weighed in the balance when considering your circumstances.
21 It is also relevant that you were on a CCO from 4 April 2016 until I remanded you on 6 March 2017. Your counsel provided a progress report dated 6 October 2016, indicating that your overall performance on that order was considered to be satisfactory. You were reporting on supervision, you had completed the 50 hours of ordered community work and you were engaging in drug treatment. This is to your credit.
22 On the other hand, the extent of your compliance has to be measured against admissions you made to your corrections worker that you were still using methylamphetamine. In addition, you were arrested on 1 September 2016 and charged with offences of possess and traffic methylamphetamine. Your counsel provided me with the police summary of that alleged offending. It indicates that you were arrested in the early hours of the morning in a motor vehicle with a quantity of cash and 7.17 grams of methylamphetamine. When interviewed by the police you are said to have made full admissions to possession of methylamphetamine. You denied trafficking. The charges are listed for hearing in the Magistrates’ Court on 24 April 2017. You will have breached your CCO if you are found guilty. I appreciate that the charges are not yet proved. However, your alleged admission to police of possession of methylamphetamine is consistent with what you have said to your corrections workers about using that drug.
23 In some respects your position is similar to that of another co-offender, Scott Martin. However, there are also important differences that explain why your order will be different to his. Martin’s response to his CCO was exemplary and I am much more optimistic about his prospects of rehabilitation than I am of yours. Nor did he offend during the operational period of a suspended sentence.
24 Your counsel submitted that the appropriate order in your case was a CCO or a combined sentence. The seriousness of your offending precludes the making of either of those orders.
25 Mr Cunanan, you are convicted and sentenced to 28 months' imprisonment. I fix a minimum term of 15 months before you will be eligible for release on parole. I declare that you have served 18 days pre-sentence detention.
26 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to 4 years' imprisonment with a minimum term of 3 years.
27 HIS HONOUR: Nothing else?
28 COUNSEL: No, Your Honour.
29 HIS HONOUR: The prisoner can be removed, thank you.
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