Director of Public Prosecutions v Fikhman

[2017] VCC 1162

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00322

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARY FIKHMAN

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 August 2017
CASE MAY BE CITED AS:	DPP v Fikhman
MEDIUM NEUTRAL CITATION:	[2017] VCC 1162

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Henderson
For the Accused	Mr J. McQuillan

Pages 1 - 5

 

 

HIS HONOUR: 

1Gary Fikhman, you have pleaded guilty to one charge of riot.  You have admitted your criminal history, which contains numerous offences from 2008 to 2015, mostly of violence and dishonesty.  You are currently serving a sentence of 17 months with a non-parole period of 11 months, 135 days PSD having been served, which was imposed on 8 December 2016.

2Under that sentence, your current release date is 12 October 2017.  As I am about to impose a head sentence here of above 12 months, I will set a new non-parole period.

3The facts of the matter which are not disputed by your counsel are contained in Exhibit 1, the prosecution opening.  The specific facts of your involvement in this riot are set out in Part B of that opening.

4Briefly stated, after a number of protests at the Metropolitan Remand Centre relating to the ban on the provision of tobacco products to prisoners, on 30 June 2015, approximately 200 to 300 prisoners at the MRC were involved in the largest riot in Victoria's correctional history.  It took 15 hours for prison officers, police and fire brigade personnel to restore order to the prison and secure all prisoners.  By 11 pm, the rioting prisoners began surrendering.  A large number of prisoners then had to be relocated to other prison facilities as large parts of the MRC were no longer operable.

5Your specific offending include entering unauthorised areas, disguising yourself, taking items from the canteen and the unauthorised use of a telephone.

6Fourteen victim impact statements have been tendered.  They detail the concern for safety of the Corrections staff and I have taken their contents into account.

7In mitigation, your counsel relied on your early plea of guilty and I accept that as an acceptance of responsibility by you for your behaviour and have saved the community the cost and expense of a jury trial and you will be given the appropriate discount.  Two, he submitted I should look at the issue of parity.  Three, he pointed to your age, you are now 26.  Four, he submitted that the principle of totality, that is looking at the prison sentence you are currently serving and the one I am about to impose, so it does not finish up in a crushing burden.  Five, he set out your background.  As I said you are 26.  You were born in Victoria.  Had a somewhat exotic childhood, your family went to Russia and then to America.  There was violence in the family, there was a divorce and you had minimal contact with your father.

8At 13, your mother left the children to travel to Israel.  You were left in the care of your 17 year old brother.  She came back nine months later.  She then left again and you did not see her again until you were aged 17.  The children were left to care for themselves.  Your brother relocated when you were aged 14 to Canada and you virtually left on your own.  Evicted from the flat you were in at the age of 15 and couch surfed thereafter.  At age 17, your best friend overdosed on Xanax and alcohol and suffocated in his sleep.

9At some later stage, your older brother came back from Canada and took you to see your mother in Israel.  You then returned to Australia with your mother and your older brother.  You completed Year 10.  Your longest period of employment in intermittent labouring jobs was 18 months.  You would like to become a plumber.

10Your drug usage commenced at an early age, the use of cannabis at age 13, ice at 15.  Intravenous use of amphetamines at 17 and thereafter, the use of heroin. 

11Six, your counsel tendered a psychological report from Dr Aaron Cunningham, which sets out your background.  He diagnosed that your presentation was consistent with a major depressive disorder and panic disorder.  Abandonment, it said, continues to be a significant trigger for your panic.  In his view, ongoing incarceration would be likely to increase your symptoms of panic and further impair your independent living and coping skills.  I have taken those factors into account.

12Seven, your counsel submitted you played a minor role in the riot.  I agree with that.  You were an opportunistic follower in the riot and did not play any part in the planning or organising of the riot or any of the major incidents in it. 

13I have been referred to the case of Luca, a decision of the Chief Judge of this court on 24 October 2016, when His Honour imposed a sentence on a co-offender called Luca.  In that decision, His Honour set out the relevant legal principles that I should consider when sentencing for riot, see Paragraph 15 of those reasons.  I accept His Honour's propositions and in particular, the proposition that in assessing the culpability of an individual participant, it's wrong just to look at the acts of the individual participant in isolation.  That is because the acts of the individual are not committed in isolation and that is the very fact that constitutes the gravity of the offence.  The person who participates in the riot bears some responsibility for the collective damage and harm caused.

14However, 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 played in the commission of the riot.  The Chief Judge acknowledged that great weight should be given to the consideration of general deterrence for the offence of riot so that sentences must make it less likely in the future that others will join in such a riot.

15I accept His Honour's categorisation of denunciation of this riot at the MRC as expressed in Paragraphs 17 and 18 of his reasons.  His Honour said,

"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.”

16In sentencing you, as I have indicated, I have already sentenced a number of co-offenders and I am required to look at the issue of parity, that is the comparison of the sentences.  However, that does not mean and I have not actually done a minute examination of comparison of your behaviour with those of other rioters.  As I said to counsel, the case of Shane Thomas, who I sentenced yesterday, seems to me more or less on par with yours insofar as actual behaviour is concerned.

17In sentencing you, I have taken into account all of the matters put by both parties and any cases referred to.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community to seek to ensure as far as possible offenders are rehabilitated in society.  I express my denunciation of the behaviour.  The basic purposes for which a court may impose a sentence of punishment are general deterrence, that is to try and stop other people from committing riot.  Specific deterrence which is important in your part because of your extensive criminal history to try and convince you not to reoffend.  General rehabilitation, denunciation and protection of the community.

18In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and the effect it has had upon prison officers and other staff involved in the riot.  Your counsel submitted I could look at a combined custody, community corrections disposition. That would mean a sentence of 12 months or less.  As I have indicated to him, in my view, the seriousness of the offending warrants a head sentence beyond the 12 months limit.  Thus, in my view, that is not an appropriate sentencing outcome here.  As I have already stated, general deterrence is the overriding sentencing consideration.

19Weighing up all those matters and doing the best I can, I sentence you as follows.  On the charge of riot, I sentenced you to a term of imprisonment of 14 months.  I direct that eight months of that be served concurrently with the sentence you are presently undergoing.  I fix a new non-parole period for both of those sentences, to begin today, for a period of four months and two weeks.  I declare that if you had pleaded not guilty and you were convicted by a jury, you would have been sentenced to around three years with a non-parole period of two.

20Now Mr Fikhman, you seem a strapping young man to me.  It is about time you stopped all this and got on with your life.  So hopefully, when you get out you actually can do something with it, because if you do not, you know what is going to happen.  In and out of gaol and sooner or later, probably sooner, you'll be dead.  So hopefully you can do something about it.

21Any other matters or orders I need to consider?

22MR HENDERSON:  No, Your Honour.

23MR McQUILLAN:  No, Your Honour.

24HIS HONOUR:  Thank you.  Take Mr Fikhman out please?

25(Prisoner removed.)

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