Director of Public Prosecutions v Keft
[2017] VCC 362
•21 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01874
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL KEFT |
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JUDGE: | HIS HONOUR JUDGE ALLEN | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 March 2017 and 15 March 2017 | |
DATE OF SENTENCE: | 21 March 2017 | |
CASE MAY BE CITED AS: | DPP v Keft | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 362 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited: DPP v Luca [2016] VCC 1573
Sentence: 2 years and 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Foster | |
| For the Defendant | Mr K Reynolds |
HIS HONOUR:
1
Daniel Keft you have pleaded guilty to one charge of riot. That offence was committed by you, in the company of at least a hundred other prisoners, on
30 June 2015.
2 You have admitted a large number of prior criminal convictions. Those prior offences were before the courts in six separate court appearances. They include numerous prior offences involving violence, including recklessly causing injury, assault by kicking and, most significantly, behaving in a riotous manner in a public place. In relation to that prior charge of behaving in a riotous manner in a public place, you were sentenced in this court to a term of imprisonment which was wholly suspended.
3 Since the riot, on 30 June 2015, you have been sentenced in relation to some 71 other offences over three court appearances, those other offences having occurred prior to the riot. These subsequent matters included convictions and sentences for assault with a weapon and assault with an instrument. They are directly relevant to your offending in this case. That having been said, it should be noted that, having been sentenced in relation to those subsequent matters, you have completed those sentences. Your last sentence lapsed on 22 December 2016; you have been held in remand since then in relation to this matter.
4 The fact that you have such serious prior convictions and have subsequently been convicted of other violent offences, committed before this offending, puts you in a very serious situation, compared to some other offenders. I know you have already been punished in relation to those matters. You are not to be punished again. However, the law says I must take into account, in assessing the need for specific deterrence and assessing your prospects of rehabilitation, the fact that you have so many relevant prior convictions.
5 The full circumstances of the riot, as well as the background to it, are set out in the Summary of Prosecution Opening which was read to the court and marked as Exhibit A. Briefly stated, the background and circumstances are as follows:
a) On 30 June 2015, you were a remand prisoner at the Metropolitan Remand Centre, Ravenhall. You had only been there for a couple of days and, for all intents and purposes, it was your first time in gaol. To make matters worse you were still coming down from the effects of having prior to your incarceration been bingeing on methylamphetamines.
b) The year before, in 2014, the Government had passed legislation which proposed to make it an offence to smoke in a Victorian prison from 1 July 2015.
c) So it was, by May 2015, the range of tobacco available to prisoners was being gradually reduced. The total smoking ban was to commence on 1 July and all Victorian prisons were required to cease selling tobacco and tobacco related products by 15 June. The MRC had received an extension in relation to that deadline to 19 June.
d) In the weeks and days leading up to 30 June, there had been several peaceful protests held by prisoners, in relation to these proposed measures.
e) On 30 June, what started as a protest erupted into a very serious riot, which involved hundreds of prisoners and went on for a period of about 15 hours. It took the efforts of prison officers, Victoria Police and fire brigade personnel, a great deal of time to restore order and secure the prisoners.
f) A large number of prisoners then had to be relocated to other prison facilities due to the fact that, as a result of the damage that had been caused, large parts of the MRC were rendered temporarily inoperable.
g) During the riot it appeared that prisoners were working together to achieve their aims, such as, forcing entry to various buildings, damaging property and repelling prison officers.
h) At times, prisoners were released from their cells by other prisoners and they, in turn, joined in the rioting mob.
i) Prison officers and other public servants who were employed at the MRC were forced to flee the grounds for their own safety. In their victim impact statements, many of them have described the level of fear that they experienced as a result of the riot.
j) In all, 102 prisoners were charged in relation to the riot.
6 According to the Summary of Prosecution Opening, the following significant particular events occurred during the course of the riot:
(a) The fences of areas 1, 2 and 3 were breached by rioting prisoners. This occurred as a result of prisoners kicking, pushing and pulling on the fences which separated the three yards, until they were ultimately breached. That having occurred, prisoners then moved through the holes in the fences and began congregating in the area 2 baseball court;
(b) The Central Movement Control area, known as the “CMC”, was breached twice. The first breach occurred at about 12.20pm, after prisoners had congregated in the area 3 basketball court. They moved from that basketball court towards the CMC and were able to force the lock on the door, allowing the prisoners to storm the CMC. Upon gaining entry, they began to damage the interior;
(c) The gatehouse was stormed. After breaching the CMC, the rioting prisoners made their way towards the health centre, where the canteen was located. A number of prisoners then also breached the southern door, which led to the gatehouse. Staff members there were, to quote to the prosecution opening, "frantically fleeing the facility just ahead of the approaching prisoners." Many prison officers and staff who were employed in that area have described the terror and fear they experienced at that time. A number of prisoners, including yourself, had armed themselves with metal bars and other makeshift weapons and advanced on the gatehouse. Some prisoners threw rocks at retreating prison officers. You were captured on the CCTV footage calling out threatening words towards the prison officers in the gatehouse, albeit, at some distance;
(d) The canteen was looted. After exiting the CMC, the prisoners forced entry to the canteen where they looted cigarettes, confectionary, soft drinks, sunglasses and various other items;
(e) Significant damage was caused to the prison units. Having been engaged in the looting of the canteen, the rioting prisoners then turned their attention to the accommodation and non-accommodation units. They used makeshift weapons to smash windows and damage equipment and fixtures inside the units, including the disablement of security cameras and the use of fire hoses to flood floors. Some of them were involved in the removal of cell doors, to free other prisoners, and the use of prison vehicles, including a tractor, to cause damage to buildings, gates and fences. This kind of conduct occurred throughout the afternoon. As I'll mention later, you, yourself, were engaged in damaging prison property.
(f) At about 4.31pm, the CMC was breached for the second time. On this occasion, prisoners threw rocks and utilised the stolen vehicles to ram the gate. There was no evidence that you were actually involved in that particular activity. The prison riot finally came to an end at about 11pm when the rioting prisoners began to surrender. They were taken into custody throughout the night.
7 A number of victim impact statements have been tendered in a folder. It's not surprising to read in those statements the descriptions of the various physical injuries and emotional harm that the riot caused those prison officers and other employees who found themselves caught up in this outrageous conduct. Some suffered minor injuries, as a result of the inhalation of chemical agents, which were thrown back at them by prisoners. Others suffered injuries during physical clashes with rioting prisoners. Numerous staff members have described various forms of psychological damage and emotional trauma they have suffered as a result of what occurred.
8 The quantum of the damage caused by the riot is huge. As at 11 April 2016, the Department of Justice had incurred $12.1m worth of costs, as a result of the riot, of which nearly $7m related to the repairs to the MRC.
9 As Chief Judge Kidd said in his sentencing remarks, upon sentencing one of your co-offenders, Johnathon Luca on 24 October 2016:
"The offence of riot is a very serious offence. It derives it's 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."[1]
[1]Director of Public Prosecutions v Johnathon Luca [2016] VCC 1573 at [15]
10 There is no doubt, and was not disputed by your Counsel, that this is a very serious example of the offence of riot. As His Honour emphasised in Luca, significant weight must be given to the sentencing objective of general deterrence because:
“deterrence assumes particular importance where the offending takes place in a prison setting… The Courts cannot permit the law of the jungle to take hold in prisons."[2]
[2] Ibid
11 It is obviously critical to the sentencing process that your particular role in the offence is clearly identified. However, as Chief Judge Kidd also said in Luca,
"in assessing the culpability of an individual participant, it is wrong to take the acts of individual participant in isolation… A person who participates in a riot bears some responsibility for the collective damage and harm caused."[3]
[3] Ibid
12 Nevertheless, it is clear as a matter of law that I must take into account the extent to which you were blame for the offence and the part you played in it. Your particular role in the offending may be summarised as follows:
a) Just before midday, on 30 June, a number of prisoners who had assembled to protest about the smoking ban, began kicking the fences between areas 1, 2 and 3. The CCTV footage reveals that, shortly after midday, you were pacing along the fence line of the area 3 yard, clapping your hands and yelling. You kicked the fence twice with your right foot in an aggressive manner and pumped your fists into the air.
b) During the course of this conduct by you and the other prisoners, the fence was seen to bow and it was eventually breached, first, between areas 2 and 3, and then between areas 1 and 2. Prisoners started moving through the fence from areas 1 and 3 and congregating in area 2. You entered the breached fence line with them, hugging another prisoner apparently with excitement, chanting "we want Ox!", referring to tobacco.
c) Shortly after that, you were observed in the area 3 yard near the basketball court, clapping your hands and looking over your shoulder at other prisoners. You then moved with the mass of prisoners towards the CMC.
d) Minutes later, you were in the area 3 yard, raising both hands in the air, this time with clothing covering your face, by way of disguise. You picked up a wheelie bin with both hands and held it above your head, before throwing it at the CMC gate. You did this three times.
e) At about 12.20pm, the prisoners breached the area 3 gate into the CMC. You walked into the CMC with them. You took a chair from another prisoner and rammed it into an object on the wall. You did this numerous times and then threw the chair at the wall. You then picked up a metal bar and continued to strike it at an unknown object on the wall.
f) You then continued through the CMC towards the gatehouse. You were now holding a metal pole in your left hand. You advance towards the gatehouse, waving the pole at staff members in a threatening manner. Although, as your Counsel emphasised, you were at some distance from the prison officers when you did that.
g) About ten minutes later, you were seen walking around the prisoners' shop, picking up poles located on the ground. You then continued to the canteen and entered it, holding a pole in each hand.
h) About five minutes after that, you returned to the area 3 yard and were observed holding a weapon in your right hand. You put the weapon on the ground and then tied the t-shirt back up around your head in order to cover your face, before picking up the bar and continuing towards the CMC. That may have been the end of your actual active involvement.
i) A short time after that, you were seen being assisted by other prisoners to wash your face, apparently, having been affected by tear gas.
j) Later again, you were observed present in the Atwood Unit and, at 1.45pm, you were seen entering the Billingham Unit. There is no evidence as to what you did, if anything, in either of those units, but clearly you shouldn't have been there and you were there as part of the general riotous conduct.
k) Eventually, at 3.23pm, you were observed walking around the area 3 yard, holding a drink. I note that this was your own prison yard, where you should have been all along.
13 Whilst the Crown submitted that your activity extended over a period of more than three hours, from about midday until about 3.20pm, I note that the last time you were seen to actually engage in physical violence, or active conduct, if I can put it that way, was prior to 12.45pm. Nevertheless, this does not diminish the fact that you were not seen back where you should have been, in unit 3, until 3.23pm that afternoon.
14 The prosecution have fairly conceded that whilst your conduct is very serious, you were not involved in the planning; the lighting of fires; any physical assault on prison officers; or the driving of prison vehicles, as were some other prisoners. However, in summary, your actions did include the following conduct:
(a) chanting and encouraging others;
(b) damaging prison property;
(c) using a disguise;
(d) the use of multiple makeshift weapons;
(e) the breaching and advances upon the CMC and the gatehouse; and
(f) threatening conduct towards prison officers.
15 The Crown have submitted that the role that you played was greater than that of Jonathan Luca, who has already been sentenced by the Chief Judge. Your counsel said that this was not accepted by you. The Crown have provided a chart, Annexure A to their final submissions, which purports to compare your conduct to that of Mr Luca. It's clear that, substantially, your conduct was much the same as Mr Luca's, but that there were two particular aspects of your conduct, in which Mr Luca was not involved, which place you at a higher level in terms of culpability:
First, you were part of the group who advanced to and breached the gatehouse and engaged that threatening conduct in that area, which was very close to the gates of the prison.
Secondly, there is evidence that you waved the pole you were brandishing at those prison officers threateningly. Thus, you were directly involved in threatening conduct towards prison officers.
16 Now whilst that does put your level of involvement at a higher level than that of Mr Luca, in my view, it is not to a great extent, given all of the circumstances. However, there are other distinguishing factors between you and Mr Luca. The most important of them are that Mr Luca was only aged 20 when he offended, he had fewer relevant prior convictions and, in particular, no prior conviction for riotous behaviour. The law says youthful offenders such as Mr Luca, must generally receive, in effect, special consideration in the sentencing process, as you would have received when you were aged 20.
17 A plea in mitigation was made on your behalf by Mr Marshall and written submissions were tendered and marked as Exhibit DK2.
18 It emerges from what was put before me by Mr Marshall and from the written submissions that you are now 34 years of age, having been born on 14 December, 1982. You had a difficult childhood. Your parents separated when you were four. You lived with your mother initially in Dandenong, although, there was some instability in that. There was some moving about and you attended various primary schools. You have never had an appropriate relationship with your own father. Your mother re-partnered when you were aged about seven and, as I understand the material, you also had a difficult relationship with your stepfather. You have four siblings. You suffered some bullying at the hands of some step-siblings.
19 You found school difficult as you suffered bullying there, also. You had learning problems and, at one stage, you were diagnosed as suffering from ADD and were prescribed medication. It's no surprise that, given those circumstances, you left school during Year 9, having only completed Year 8.
20 As a result of these difficulties and conflict with your parents, you left home at the age of 14. You returned home again, for a period, at age 16. According to Mr Marshall, for significant periods from the age of 14 onwards, you were, effectively, homeless.
21 These serious problems you were already experiencing as a teenage boy were aggravated by drug abuse. You had started smoking cannabis at the age of 11. By your mid-teens, and by the time you moved out of home, you were regularly abusing amphetamines, often engaging in binge usage. By the age of 25 you were injecting illicit drugs, including heroin and ecstasy. You developed a morphine dependence. Prior to your incarceration, only days before the riot, you were engaged in a serious methylamphetamine binge and, at the same time, using heroin and cannabis, according to what I was told by Mr Marshall.
22 I accept that when you became involved in the riot, you were in a bad state. It was your first time in gaol, you were still affected by the drugs you'd been bingeing on, as well as sleep deprivation, and you got swept up in this conduct. It doesn't excuse your conduct but it puts it in context.
23 As far as relationships are concerned, the longest serious relationship you experienced was your six years with Shannon. You and she commenced that relationship at age 16. You had a son, Tyler, who's now aged 11. That relationship came to an end after six years, for various reasons, including issues resulting from your serious drug abuse. You had subsequent relationships, which also ended because of drug abuse.
24 You have had a sporadic employment history. From the ages of 17 - 24 you had obtained part time work here and there in plumbing and as a brickies labourer. From 2012, for some period, you worked for Multipipe, doing roadwork. Your employment history has, of course, been marred over the years by your serious personal problems and, most significantly, by your ongoing drug abuse.
25 Mr Marshall tendered some documents in support of your plea. There were two psychological reports from Dr Cunningham. The most recent of them, the report dated 2 March 2017 says, amongst other things, that you suffer from a borderline personality disorder. His report explains what I've just mentioned, that at the time of the riot you had been in custody for just two days and you hadn't slept for 10 days previously. You were withdrawing from methylamphetamine abuse. The report explains that, after the riot, you were subjected for a significant period of time to 23 hour lockdown, and I'll come back to that in due course.
26 You explained to Dr Cunningham that you have now been abstinent from drugs for nearly two years and that is by far the longest time in your life that you have not used drugs. You stated to him that now that you have had time to consider your actions, particularly sitting alone in your prison cell for such long periods, that you are ashamed of your behaviour. You told him that, having had time to reflect on that behaviour, you are ashamed of what you did. Dr Cunningham says that, in his opinion, you acknowledge accountability for what you did. You have indicated a strong desire for change when you are released into the community. Unusually, given the difficulties that you have experienced, you are blessed with the ongoing love and support of your mother, family and friends, as well as extended family, particularly your cousin. Many of your fellow prisoners don't have that benefit. I am sure you appreciate that.
27 Your counsel also tendered a letter from your mother. I have read it carefully. It is a very powerful letter and I have taken its contents into account. Most importantly, your mother refers to what she describes as the “months and months of extreme incarceration” which you have endured, by way of extended lock down, as a result of your involvement in the riot. She says that you have used that time to reflect upon your past life, and that you have told her that you have now finally become a man. You have affirmed to her your deep desire to be a good father to your 11 year old son. Your mother has been visiting you every week, with Tyler. She is impressed by the way you speak now to her, the things you say and the way you engage with Tyler. She says that, having travelled down the path that you have travelled, you now deeply regret and acknowledge the bad choices that you have made in your past and that you are determined that you will do everything you can to be a positive influence on your own son as he grows into his teenage years. She says that she is proud of the progress that you have made over the last 18 months.
28 Your cousin Lucia also expresses her strong support for you. She has been keeping in touch with you in gaol. She witnessed, as she put it, the very hard times that you have endured in the past, due to your drug addictions. However, she says that more recently she has seen a real change in you. She says that your letters are clear and meaningful and full of positive plans for the future, for both you and your young son.
29 I accept those observations by your mother and your cousin, and I accept that you are genuine in your stated desire to change. Despite your serious prior convictions and your involvement in this riot, on the basis of what has been put before me through the reports of Dr Cunningham and the letters from your family members, I accept that you have good prospects of rehabilitation, if you receive appropriate supervision and support, which would come by way of a parole order. This will be reflected in a lower minimum non-parole period than I might have otherwise imposed.
30 Your Counsel, in his submissions, relied in summary upon the following factors in mitigation:
First, you entered your plea of guilty at an early stage. The Crown have conceded that this is a matter I must take into account.
Second, remorse. Despite what the Crown submitted in its final submissions, I accept that you do have genuine regret and are remorseful.
Third, rehabilitation. As I have just said, given what I have been told in the letters and in the reports, about how you have spent your time in gaol, and the extent to which you have considered your past, and your plans for your future, I accept that you have good prospects of rehabilitation. But it will be hard, and I can only hope that you are granted parole when you are eligible for it, and that appropriate measures are put in place to support you. You will need significant support, in addition to the support which your mother and your family will provide.
31 It was also submitted that I should take into account that it has now been a significant time since your offending. Delay, in itself, is a form of punishment, which relates to the next matter, namely hardship. At least thirteen and a half months of the time that you have spent in custody since the riot have been spent in circumstances of extreme hardship. For many months you have been subjected to 23 and a half to 23 hour a day lockdown. For a significant period of time you have also been subjected to 22 hour to 23 hour a day lockdown. In more recent times, you have been allowed the benefits enjoyed by ordinary prisoners, eight hours a day out of your cell, not half an hour, not an hour, but eight hours a day, with the opportunity to work and to engage in programs. Those opportunities were denied to you during that long period you were subjected to extensive hours of lockdown. As His Honour the Chief Judge observed in Luca, it has to be said that, to some extent, you were the architect of your own demise in relation to that. You were part of the riot and that is what has resulted in the lockdown. Despite that, I still regard it as a significant matter in mitigation, that you have endured that additional hardship. It has effectively amounted to a form of extra-curial, that is, out of court punishment, for what you did. I also take into account that, but for the fact that you were charged in relation to this matter, you would have originally been entitled to apply for release on parole in about mid-May 2016, which was denied to you.
32 I hope that these matters I have just mentioned have not given you any sense of false hope about the outcome here today. We all must acknowledge, you must acknowledge, and I am obliged as a matter of law to bear in mind that this is one of the most serious examples of the offence of riot that one could imagine. It occurred in a prison and it occurred in defiance of the authorities in the prison. It occurred over an extensive period of time, it involved weapons, destruction and damage, including by fire. It involved threats to prison officers, who were simply endeavouring to do their job. It has resulted in a great deal of harm, physical and emotional to those who suffered as a result of the riot. It's resulted in millions of dollars in damage to the gaol. Now, it's true that you were not directly responsible for all of that, but you are partly responsible because you were part of that group which engaged in that riot. As far as your personal involvement was concerned, it was not at the lower end of the spectrum, but as I have already explained, not at the higher end, either.
33 I must take all these matters into account, and the sentence to be imposed should have the following purposes:
a) General deterrence is the most important sentencing objective. That is, it must be made clear to anybody else who might be tempted to become involved in this sort of conduct, that if they do, they will suffer very serious punishment. They must be deterred.
b) You must be deterred from future criminal violence and unruly behaviour, particularly bearing in mind your prior history.
c) This particular conduct must be denounced, that is, it must be made clear by the Court that the community will not tolerate riotous behaviour in the face of authority, particularly in gaols.
d) You must be punished for what you did.
e) Finally, I must impose a sentence that facilitates, as much as possible, your rehabilitation.
34 In addition to those matters, the law requires me to apply what is known as the principles of parity, you understand that don't you? I have got to take into account the sentences already imposed, not just on Mr Luca, but also upon two other offenders who have been sentenced by Judge Grant. I have got to look at your conduct compared to theirs, your age compared to theirs, your criminal history compared to theirs, your prospects of rehabilitation compared to theirs and, taking those and other matters into account, somehow arrive at what I determine to be an appropriate sentence, in light of the principles of parity. In other words, I am explaining that the law sets out a very clear framework which I must follow.
35 Having done my best to apply all relevant sentencing principles, I have determined that the appropriate sentence on this charge of riot is a sentence of two years and nine months imprisonment, with a minimum non-parole period of 18 months.
36 I declare that you have spent 89 days by way of pre-sentence detention.
37 I declare pursuant to s.6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to be in prison for three and a half years, with a minimum non-parole period of two years.
38 I know that that must be very hard for you to swallow. I hope I have explained why it has been necessary to impose that sentence. But most of all, I hope that you are able to continue to move forward with your desire, your commitment to rehabilitate yourself. So that when you are released, hopefully on parole, as soon as you are eligible, you will be able to move forward with your rehabilitation and provide that example and support for your own son. I will now adjourn.
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