Director of Public Prosecutions v McKenna

[2017] VCC 1447

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 17-01142

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK MCKENNA

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 October 2017
CASE MAY BE CITED AS:	DPP v McKenna
MEDIUM NEUTRAL CITATION:	[2017] VCC 1447

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward
For the Accused	Ms S. Pillai

HIS HONOUR: 

1Patrick Joseph McKenna, you have pleaded guilty to one charge of riot.  You have admitted your very substantial criminal history although I note this is your first appearance in the County Court. 

2Fourteen victim impact statements were tendered.  They detail the fear and concern for the safety of prison staff and I have taken their contents into account.

3The facts of the matter are set out in the prosecution opening, Exhibit 1, in a comprehensive fashion.  Any reader of these reasons to place this sentence in its total factual context should go to that exhibit, Exhibit 1, to understand the full context. 

4Briefly stated, after a number of protests at the Melbourne Remand Centre relating the ban on the provision of tobacco products to prisoners, on 30 June 2015 approximately 200 to 300 at the MRC were involved in the largest riot in Victoria's correctional history. 

5It 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.

6Your role in the matter is set out in Part B of the prosecution opening and it involved entering the CMC after it was breached, entering the canteen twice after it was breached and taking an item from it, running towards the Ballan unit as it was being forced open with a white T-shirt wrapped around your face, entering the Ballan unit after it had been breached for a short time, entering the Atwood unit after it had been breached and while other prisoners rifled through the officers post and you a threw a computer monitor to the floor.

7A submission was made in respect to the factual occurrence of that to me and I then viewed the video.  I am satisfied that at the time you did that, there were other prisoners in close vicinity to you doing other things.

8It is alleged that your involvement including gathering with prisoners in Area 1 and watching while other prisoners threw rocks at prison officers, entering the Chilwell unit and damaging a window by kicking it and allowing a prisoner to climb through before adjusting another prisoner's disguise. A submission was made that you, on instructions, that you took part in that because it was a form of rescue for the other prisoner.

9I have viewed the video and from that video, I have no conclusion as to whether that was a rescue or not and really probably does not matter.  You entered the Billingham unit after it had been breached and struck the glass panel in the door of an office with a pole.

10You were not a planner or organiser of the riot, you were what might be described as an enthusiastic participant in it although it would seem on many occasions, your opportunistic behaviour was by yourself.  As I said you were a low-level participant. 

11I have dealt with a number of these riot matters and have considered the issue of parity.  In sentencing you, I have not delved in a minute examination or comparison of your behaviour with that of other rioters.  The comparisons between your behaviour and other rioters that I have dealt with and also other judges have dealt with have assisted me have assisted me in coming to my conclusion here.

12Your offending by comparison with the offending of the person the Chief Judge sentenced on 24 October 2016, Mr Luca, I accept is less is than his offending.  In that - in those sentencing reasons, the Chief Judge comprehensively set out the relevant principles in relation to sentencing for riot - see paragraph 15 of the reasons - and I accept His Honour's propositions.

13And in particular, the proposition that in assessing the culpability of an individual participant, it is wrong to act on the individual participant's acts in isolation. 
That is because the acts of the individual were not committed in isolation; this is the very fact that constitutes the gravity of the offence.

14A person who participates in a riot bears some responsibility for the collective damage and harm caused.  However, a sentencing judge should nevertheless take into account the extent to which the offender was to blame for the offence and the part in which played in the commission of the offence.

15In those sentencing reasons, 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 follow in when or if a riot.  I adopt His Honour's categorisation and denunciation of this riot at the MRC as expressed in paragraph 17 and 18 of his reasons.

16His Honour said and I repeat:

"[T]his 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".

17In mitigation, your counsel relied on the following factors: 

18(1) Your entering of a plea of guilty was entered after a committal that was contested on legal basis so it could not be described as an early entry of a plea of guilty however it deserves a discount as it saved the court the cost and expense of a jury trial and there is acknowledgement by you of responsibility for your actions;

19(2) She submitted that you were a participant at the lower end of the scale and as I said, I accept that; (3), she submitted that you were placed in lockdown for a period of three months after the riot and this was an extra-curial punishment.  In your case, that has a much more limited application as you were one of the participants in the riot but I take it into account to some degree; (4), she set out your personal background.

20You are now aged 38, your parents broke up and you began living with your mother when you were 15 years of age.  You had a close relationship to your grandmother.  You maintain close contact with your brother who is two years older than you and you have had contact with your mother and sister whilst you have been custody.

21You have a lengthy history of illicit drug use which started with the use of cannabis at age 15 and thereafter escalating to heroin and ice use.  Whilst in custody, you have been able to demonstrate by way of urine screens that you can stay off drugs.  However upon release, as I will go into shortly, you relapsed into drug use. 

22You completed school Year 10, leaving at the age of 15.  You have had various occupations; a bricklayer, a builder, landscape gardener and chef.  Your longest period of employment was 18 months to two years in approximately 2008.  You are currently working as a billet at the gaol.

23(5) Your counsel submitted that you have shown by virtue of the drug screens that you can remain drug free in a structured environment. 

24(6) She pointed out that you have some prospect of rehabilitation as demonstrated by your work as a billet whilst in custody.  She submitted that I could consider a straight sentence. 

25She referred to a LEAP record in particular to a matter at Dandenong Magistrates' Court of 15/09/09 when the magistrate dealing with that under custody management issues, noted that you managed dependence in a very structured environment and you do not have the skills to manage in the community.  That is reflected by your continual offending. 

26Your counsel also referred me to a CISP progress report which is dated 20 January 2017 written by Lillian Hassan who is a CISP case manager.  She said you presented as polite and cooperative and said you wanted to stay on the right track.  You reported a long history of illicit drug use to her. 

27There has been no issues with your mental health and arrangements were made to put you into various programs so you could be assisted with your employment goals.  However, you failed to appear for a mention at the Magistrates' Court in relation to a committal for this material of 24 March 2017, having been bailed on 9 December 2016 and your counsel told me that was because of a relapse by you into your drug usage. 

28The basic purposes for which a court may impose or punishment are general deterrence, specific deterrence which has a role to play here because of your criminal history, general rehabilitation, denunciation and protection of the community. 

29In 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 that it has had upon prison officers and other staff involved in this riot. 

30Taking into account all the submissions made your counsel, and I cannot agree with her submission that you have good prospects of rehabilitation or any prospects bearing in mind your criminal history and your fail to appear as I have just outlined in March of this year.  Really, you are now aged 38 and it is about time you actually did something about your life or you are going to spend the rest of it in and out of gaol.  Of course, that is not just apposite to you, it is the people that you offend against you might rob or interact with in a criminal way; it affects them.  Think about them for a change instead of yourself and trying to find finances to fund your drug habit. 

31Taking into account all those matter, I am of the view that to release on a straight sentence would be a folly.  You need some supervision when you are released.

32Taking all those matters into account, I sentence you to a term of imprisonment of 15 months.  I direct that you serve a period of eight months before being eligible for parole.  I state the term of 184 days you have already served to be part of sentence that I have just imposed. 

33I state pursuant to s.6AAA of the Sentencing Act, if you had pleaded not guilty when you were convicted by a jury, you would have been sentenced to at least four years with a non-parole period of two and a half years. 

34Are there any other orders I need to make?

35MR HAYWARD:  No further order, no, Your Honour.

36HIS HONOUR:  Mr Hayward - thanks Ms Pillai.

37MS PILLAI:  Thank you, Your Honour.

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