Director of Public Prosecutions v Leveni

[2017] VCC 1488

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

AT MELBOURNE
CRIMINAL JURISDICTION
KOORI COURT DIVISION

CR-17-00372

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAKAVAHA LEVENI

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2017
DATE OF SENTENCE:	17 October 2017
CASE MAY BE CITED AS:	DPP v Leveni
MEDIUM NEUTRAL CITATION:	[2017] VCC 1488

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms M. Carroll	Emma Turnbull Lawyers

HER HONOUR:

1.Takavaha Leveni, you have pleaded guilty to one charge of riot.  The offence is serious and that is reflected in the maximum penalty.  The law prescribes for this offence, and that is 10 years' imprisonment.

2.You admitted a considerable number of prior convictions.  There are three court appearances in your criminal history that span the period from 20 May 2003 to 25 March 2015. 

3.The Crown tendered a Summary of Prosecution Opening which provided an extensive overview of the course of the riot, which was the largest one known in Victoria's correctional history, and also referred to your participation in that riot. 

4.On 24 October 2016, His Honour Chief Judge Kidd sentenced a co-offender, Jonathan Luca, for his participation in this riot.  I adopt from those sentencing remarks his overview of the events, and I quote:

"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 its ‘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, which I will refer to as the 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, to cause 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 11:40 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. 

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 the 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 the repairs and maintenance of the MRC.

In all, 102 offenders have been charged in relation to the riot."[1]

[1] DPP v Luca [2016] VCC 1573 at [4] – [10].

5.From that description, it can easily and readily be seen that the net effect and scale of the riot was vast.  Your offending was outlined in Part B of the Summary of Prosecution Opening, which was marked Exhibit 1.  It was also in part captured on the prison CCTV footage. 

6.Your counsel, Ms Carroll, accepted the summary of prosecution opening and its depiction of your role during the riot. 

7.A summary of your role is as follows:

8.You participated between 12:04pm to 2:26pm, a total of two hours and 22 minutes.

9.You were part of the lead group for the first breach on the CMC.  Once the CMC was breached, you used clothing to cover your face and armed yourself with a metal pole.

10.You took part in the looting of the canteen.

11.You entered the Ballan unit foyer with a crowd of prisoners and with other prisoners, pushed two metal meal trolleys against the fencing area in an attempt to barricade it.

12.Armed yourself with a metal bar you forced entry to the Albion, Burnside and the Chartwell Units. 

13.You fuelled a fire with some files and paperwork in the Area 2 race.  Another prisoner added a highly flammable BA kit into that fire causing it to explode.

14.You pulled a metal box off the wall containing breathing apparatus in the Ballan Unit. 

15.You encouraged another prisoner, Brent Kelly, to breach fences using a tractor in Area 3 race leading to Calder and Chartwell Units causing large scale damage to the fence between the units.

16.The damage culminated in the ramming of the CMC following which prison officers were forced to flee.

17.You turned on a fire hose and stood by whilst others sprayed the hose in the vicinity of horticulture.

18.You rode a tug with another prisoner and on another occasion you drove a tug.

19.In telephone calls made by you following the riot, you candidly told the recipients of your calls in your own language about your actions in the riot and what had happened. 

20.In a record of interview conducted with police on 29 September 2015, you made false denials concerning your involvement in the riot. However, you did acknowledge that the actions of the prisoners engaged in the riot would have caused fear to others who were present. 

21.The impact on the prison officers who were present has been great.  I have had regard and read the 14 victim impact statements from various prison officers that were filed.  Many have suffered ongoing difficulties in their professional and personal lives and it is apparent the stressful effects of the riots will be felt by them to varying degrees for time to come.

22.The actions of you and the other rioters have taken a toll on the prison staff, who were exposed to your criminal acts and you must take responsibility for the part you played in directly and significantly contributing to the riot and the mayhem that was caused that led to impacting on their health and wellbeing.

23.At the time of the riot, you were on remand for aggravated burglary and other matters.  On 29 October 2015 you were sentenced to a total effective sentence of 8 months to follow an 18 month Community Correction Order. Pre-sentence detention of 176  days was declared.

24.It was not until 24 December 2015 that formal charges in respect to riot were laid and that summons was served upon you on 28 December 2015.

25.On 3 June 2016 you failed to appear in relation to the riot charges and a warrant was issued.  You were arrested on 12 July 2016.  At that time you were also charged with other unrelated matters and remanded on those matters, too.  

26.On 28 February 2017 you were sentenced for weapon offences, burglary, thefts, recklessly cause injury and other charges, including breach of the Community Correction Order imposed on 29 October 2015.  The Total Effective Sentence imposed was 231 days to be followed by an 18 month Community Correction Order. Pre-sentence detention of 231 days was declared.

27.In respect to the riot matter, you were committed for trial on 1 March 2017. You pleaded not guilty to riot at committal but did offer to plead guilty if a charge of sabotage was withdrawn.  

28.You were bailed on 1 March 2017 to appear at a directions hearing on 27 March 2017 in this court.  On that date you failed to appear so a warrant was issued that was executed on 3 July 2017.

29.On 16 August 2017 you entered a plea of guilty when arraigned on the riot charge. 

30.Your plea hearing proceeded on 4 September 2017 in the Koori Court Division of this court.  You participated in a sentencing conversation with two elders and respected persons, Uncle Stephen Delaney and Uncle Lloyd Hood.  You were genuine in your participation and spoke frankly about your offending and your desire to change and to be a more responsible person.  Those sentiments were reflected in the written letter that you wrote to the court in which you take full responsibility for your actions and sincerely apologise for your conduct. 

31.You were very respectful towards the elders and listened to them when they spoke to you.  They reminded you that you had offended on Kulin Nation land and that you offended against prison officers at their workplace, where they were entitled to feel safe. Both elders emphasised the need for you to make more responsible decisions in the future and that you should take responsibility for your own actions and not be influenced by others and that it is important that you be a proper role model for your children. They emphasised that there were no positive outcomes from the riot.  Both encouraged you to make good your expressed intentions to disassociate from negative influences, to deal with your underlying drug problem, to stay healthy and to care for your family.  They emphasised the need for you to be respectful towards others.

32.Importantly, they gave you advice on how to connect with your Koori culture and be proud of your Yorta Yorta ancestors, who are and have been great leaders in their community. 

33.Finally, they told you to respect yourself and to seek help to make good your expressed intentions. 

34.Overall, I have taken into account your genuine participation in the sentencing conversation as a mitigating factor.

35.Insofar as your role is concerned, submissions were made that your role was just above that of a mid-level offender. Mr Luca, who I mentioned before, was described as being at the “high end of the mid-level offenders”.  

36.The Crown sought to distinguish your role from his in as much as there were some features that are not common. Mr Luca was a young offender, aged only 21.  He did not fuel any fires.  You confronted prison officers several times whereas he did not and his prior criminal history is shorter than yours, with no convictions.  Your prospects insofar as rehabilitation is concerned is guarded.  Emphasis was given to the fact that you have breached community correction orders in the past.

37.The Crown agreed that you are not to be sentenced as one of the organisers of the riot and acknowledged that you did surrender yourself to the authorities.

38.Ms Carroll, on your behalf, acknowledged this was a serious example of the serious offence of riot and that your conduct was significant in the two hours or so in which you participated. 

39.Overall, I consider that you were at the higher end of mid-range offenders for this offence and you will be sentenced on that basis.

40.Riot is a very serious offence.  The elements of the offence are such that it means that you assembled with other prisoners with the intent to carry out a common purpose of disrupting the prison. You assisted one another by force against anyone opposed to you in execution of that purpose and you executed it in a violent manner as to cause alarm to another person of reasonable firmness and courage. 

41.The offending is very serious, having regard to the features of the riot that I have already highlighted.  As His Honour the Chief Judge Kidd stated in Luca, “The courts cannot permit the law of the jungle to take hold in prisons”.[2] The actions of you, together with the others, was directly aimed at the law enforcement officers, both in respect to the laws made regarding your detainment and also in direct and violent opposition to those officers who were tasked with restoring peace and order to the prison.

[2] DPP v Luca [2016] VCC 1573 at [15]. See also De Castres v The Queen; Kent v The Queen [2011] VSCA 377 at [1], [10], [26]-[36].

42.Therefore, great weight must be given to the principle of general deterrence in respect to this offence and the sentence I must impose must serve as a warning to others to make it less likely in the future that they will act in this way.

43.I have had regard to your personal history and background.  You are now 33, you are a person of mixed heritage.  You have Tongan heritage through your father and Yorta Yorta through your mother.  You had a full sibling, a brother, who tragically died in 2003.  You have four half-siblings from your father's later relationship. 

44.Your background and history was set out extensively in Mr Simmons' report, and I will only refer to it in summary.

45.You have three children by two different women.  Your first two children are aged 15 and 11, respectively, and live with their mother, from whom you are estranged.  Your third child, born with a woman, Hailey Fischer, had, until your incarceration, been in your care and she is currently being cared for by your eldest half-sister.

46.You have had a very disrupted and fractured childhood.  Your mother left the family when you were only aged two and you were raised by your father.  You moved about rural Victoria and New South Wales and lived in Melbourne at times, mainly attributable to your father's employment.

47.You lived at times with your father; for a short while, about a month, with your mother but that placement broke down.  Then you have lived with paternal uncles and foster families.  You have also experienced times of significant homelessness.  From what I can glean from all the material, you have essentially lived fairly independently from age 13.

48.Your relationship with your father over the years has been problematic.  He has a history of alcoholism and violence and has been diagnosed with paranoid schizophrenia.  You were exposed to violence around your father. 

49.Your schooling was fraught because of the many school that you attended but also you suffered from being bullied as a consequence of being - attacked because of your Indigenous heritage.

50.You did poorly at school and left before completing Year 10.

51.Following your older brother's death, you were estranged from your family for a period of eight years.  It was not until your late teenage years that you rekindled your relationship with your family and you now have regular contact with your half-siblings. 

52.Kesaia, your half-sister, has the care and responsibility of your daughter Shiloh.  Her letter to the court confirms that you have been having regular contact with both her and your daughter and that she considers that you are genuinely trying to make a better life for yourself for the future and that you are genuinely motivated to change.

53.You have a long term history of drug abuse, commencing use of cannabis from a very tender age, aged 12.  You continued using until age 20.  You also had an escalating ice habit. 

54.In 2013 as a consequence of your ice addiction you lost your employment and also a relationship broke down. 

55.Notwithstanding your years of significant upheaval, you do have a good work history.  You did intermittent casual work between the ages of 17 to 26 and importantly, you worked as an excavator operator for four years with a construction company until you lost that job due to your ice habit.

56.I have already mentioned your two significant relationships, both of which broke down in the context of your escalating ice addiction. 

57.You are desirous of wanting to care for your youngest daughter and you plan to work with Department of Health and Human Services so that you can care for your daughter upon your eventual release.

58.Depression was diagnosed three months before the riot, for which you have received some treatment.  Your counsel, Ms Carroll, submitted to the court that no Verdins was relied upon.  

59.I had had regard to your fractured and disruptive background and accept that you have come from a greatly disadvantaged family, particularly in your formative years, and the role of your disadvantaged background is such that it is mitigating circumstance and that is well-accepted by the law.  The law recognises that the effects of profound depravation and disadvantage such as what you suffered during your young years do not diminish over time and frequently plays a role in serious offences committed by such persons.[3]

[3] Bugmy v R (2013) 249 CLR 571,592

60.I have had regard to your very real progress whilst you have been back in custody.  You have undertaken substance use programs, you have participated in the Indigenous Group of Learning at Port Phillip Prison and there is a letter from the group's founders that describe you as being enthusiastic and genuine. 

61.The program hopes to assist people such as yourself in gaol who are Indigenous to consider their future and help them to build a sense of hope and self-confidence to facilitate their reintegration back into community.

62.I have also had regard to the multiple certificates that were put before the court that confirm courses undertaken in literacy, communication skills, workplace safety, engineering, kitchen operations and cleaning operations.  I note that you are currently in full employment, working in the laundry six days per week.

63.On your behalf, Ms Carroll submitted a number of matters in mitigation of the sentence to be imposed, all of which I accept.  Firstly, your plea of guilty.  I accept that it was at an early stage and I have already mentioned previously that you offered to plead guilty to riot at the committal mention.  I accept that there is real utility in your plea. You have spared the State the cost and inconvenience of a trial and also saved the prison officers from the trauma of having to come to court to give evidence.

64.I note that in the circumstances, I consider that it is indicative of remorse, and that is also reflected in the letter of apology which you wrote to the court.  I accept that you now have insight and all of those factors that I have mentioned facilitate the course of justice. 

65.I accept that you are now expressing a desire to abstain from drug use and seek treatment and counselling upon your eventual release, that you are more motivated to seek employment and to reintegrate back into the community so that you can care for your child with the support of DHHS.

66.You have also expressed a desire to move to the Wantirna area upon your eventual release with your new partner Louise, away from negative peer influences. 

67.I accept that your level of engagement in prison programs does reflect upon your prospects for rehabilitation.  Overall, I consider that you have very good prospects for rehabilitation provided that you commit to total abstinence from drug use and take up the support offered insofar as drug and alcohol counselling and mental health treatment.

68.I have had regard to the fact that, as a result of the riot, you were in lockdown for a substantial period of time after the riots.  To a large extent, that was an issue of your own making.  Nevertheless, I consider the time spent in lockdown much have been difficult indeed and I have taken that into account.

69.I have also had regard to the principle of totality and I mentioned earlier about the two periods of time that you have already spent in custody; it is very disruptive going in and out of gaol and I have had regard to the fact that the principle of totality must be applied.

70.In the end, I must however take into account your role in the riot and your personal circumstances and arrive at a sentence that is just and which is appropriate for you. 

71.I have also taken into account in mitigation your genuine participation in the Koori Court sentencing conversation. 

72.Your counsel, Ms Carroll, submitted that a sentence which involved a period of gaol together with a combination of a CCO was appropriate. 

73.However, I consider the best way to meet the demands of justice is to provide you with a structure for your reintegration through the incentive of a period of parole.

74.Overall, having regard to your role in the riot and the seriousness with which I have viewed your offending, I consider that no sentence other than a term of imprisonment, to be immediately served, is appropriate.  I have fixed a non-parole period shorter than it would otherwise have been because of your very real efforts towards rehabilitation and your positive conduct in prison.  I will now impose the sentence, so Mr Leveni could you please stand?

75.One the one charge of riot, you are convicted and sentenced to a term of 28 months' imprisonment, which is two years, four months.  I order that you serve 15 months before you are eligible for parole. 

76.

The pre-sentence detention is a period of 106 days and I declare that

pre-sentence detention and direct that that be entered into the records of the court as days to be reckoned as already served on this sentence.

77.I make the following s.6AAA declaration; but for your plea of guilty I would have sentenced you to three years, six months with a non-parole period of two years and six months.

78.I will provide to the Adult Parole Board all the materials that has been furnished to the court in support of your plea to assist them in their assessment as to the appropriate treatment to be undertaken and to indicate to them your willingness to participate in such treatment.

79.So that concludes my sentencing remarks, there are no ancillary orders?  All right, good. 

80.Now, Ms Carroll, did you want to spend some time with Mr Leveni here or will you go downstairs?

81.MS CARROLL:  If I could see him here.

82.HER HONOUR:  All right, well I will stay - are you going downstairs or here?

83.MS CARROLL:  If I could see him while he's in the dock - - -

84.HER HONOUR:  Yes, that's fine.

85.MS CARROLL: - - - that would be appreciated.

86.HER HONOUR:  All right, do you want to do that now?  You've got your hearing tomorrow?

87.MS CARROLL:  Yes, the plea for the corrections (indistinct) tomorrow.

88.HER HONOUR:  We can see if we can get the sentencing remarks done today for you, but there is no guarantees.

89.MS CARROLL:  Yes.

90.HER HONOUR:  All right, thank you.

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