Director of Public Prosecutions v Oudin

[2017] VCC 1393

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00597

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON OUDIN

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 September 2017
CASE MAY BE CITED AS:	DPP v Oudin
MEDIUM NEUTRAL CITATION:	[2017] VCC 1393

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 K. Gilligan with Mr G. Hayward
For the Accused	Mr J. Williams

HIS HONOUR: 

1Simon Oudin, you have pleaded guilty to one charge of riot.  You have admitted your criminal history.  Subsequent criminal behaviour has been put to me to explain the circumstances of your reconciliation with your parents.

2Fourteen victim impact statements have been tendered.  They were not read.  I have taken their contents into account.  They reflect the concern that Corrections staff had for their personal safety during this riot.

3Briefly stated, the facts are that after a number of protests at the Melbourne Remand Centre relating to the ban on the provision of tobacco products, on 30 June 2015 approximately 200 to 300 prisoners of the Melbourne Remand Centre were involved in the largest riot in Victoria's correctional history.  It took 15 hours for police 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 had to be relocated to other prison facilities as large parts of the Melbourne Remand Centre were no longer operable.

4Your role in the matter specifically is set out in Part B of the prosecution opening.  The prosecution opening is agreed to by your counsel and fully sets out all the facts in this matter.  Any reader of these reasons can refer to that exhibit to place this sentence in its full factual context.

5Your offending behaviour included entering the canteen and looting items from there, entering the Ballan Unit and kicking the door to the officer's room, entering the Burnside Unit and striking a cell door with a weapon to remove a lock, using a phone in the Burnside unit to make personal calls, entering the Billingham Unit disguised and approaching a cell, directed a co-offender Kelly on a track to the rear of the Burnside Unit cell and with Kelly ran the external wall of the cell a couple of times, admitted to carrying a pole.

6The prosecution submission analysed your specific actions with those of
co-offender Luca.  The Chief Judge of this court in the case of DPP v Luca [2016] VCC 1573 set out what Mr Luca did and the sentence that was imposed and also the legal principles in relation to dealing with the charge of riot. The prosecution submission upon that analysis was that your behaviour was of a lesser gravity than Mr Luca and that you should receive a lesser sentence. The prosecution submissions set out the matters that I should consider including general deterrence, specific deterrence, totality, effect on the victims, prospects of rehabilitation.

7In mitigation, your counsel relied on (1) your plea of guilty which was an early plea of guilty and will be given the appropriate discount as it is an acceptance of responsibility by you for your offending and also has saved the court the cost and inconvenience of a trial before a jury; that is, inconvenience to the witnesses.

8(2) It is submitted that you had a - by comparison with others - a less serious criminal history.  That is, a limited criminal history.

9(3) At the time of the offending, you had actually been in custody for some 11 days, it being your first time in custody.  He submitted that you are not an experienced criminal used to being in custody and basically went along with the crowd.

10(4) He pointed to your father's ill health which is detailed in two documents from Northern Health and also in the evidence of your mother.  He initially submitted that I could find that there are exceptional circumstances as you are a carer for your father in relation to his health problems, however upon discussion with me, he may or may not have relented from that proposition but my conclusion is that exceptional circumstances are not made out.  However I am satisfied that the concern for your father's health which can be life-threatening will prey upon your mind whilst in custody. 

11In the report of Dr Ian Brand from the Northern Hospital, the most recent one, after detailing your father's medical problems, he said, "The prognosis of the patient is not good."  He said, "I cannot say from the medical report how quickly the condition might deteriorate or give an opinion as to his life expectancy."  He said, "The present treatment appears to be holding things at a reasonable level."

12Your counsel filed written submissions and in those submissions set out your personal background and I take that into account. 

13You were educated to Year 9 at Epping Secondary School.  You left school at 15, completed a three-year apprenticeship at a diesel mechanic and had been employed as a concreter, detailer, labourer and diesel mechanic.  You had been a heavy user of the drug ice in your 20s.  You have two children, Kayla and Madeline, and you have contact with them once or twice a week.

14(6) You called your mother to give evidence as to the reconciliation that occurred between yourself and your parents.  Intervention orders et cetera had been taken out by them which you had breached.  Upon your release from custody during which you served six months for other offending post this riot.  Your parents decided on her evidence to give you a second chance.  You had expressed remorse to them in prison.  You were living at their place; they have set ground rules for you:  no drugs, associates not to attend at the home, show more respect and care to them. 

15She said that you now take on more responsibility for caring and interaction in the family.  She said you helped a lot with your father, she goes to work for some 20 hours a week and then you are then responsible for the care of your father.  He went into hospital - I think it was last week in an emergency and spent three days in there.  She said that you have expressed to her that in relation to this offending, you knew that you had done the wrong thing.  She outlined to me the problems you had had with drugs which are probably at the root of all your problems and the problems that you had with your parents.  Can I say, it speaks very well of your parents that they are prepared to be forgiving of you and I encourage you to continue the good relationship you have now established with your parents.

16(7) Your counsel tendered a reference from Phillip Anderson which I have read and taken into account. 

17(8) He submitted you had shown remorse as evident from your record of interview in which you were cooperative and made admissions.  You have described your behaviour in the riot as ridiculous and stupid. 

18(9) He submitted that you had good, reasonable prospects of rehabilitation. 

19I have taken all those factors into account in sentencing you.  You are to be sentenced as a low-level participant in the riot.  Parity is an important sentencing consideration here as discussed with counsel as I have dealt with a number of the rioters, I have to show some consistency in the sentences I have been giving and they relating around the case of Luca, whether the - in my view, the offending - specific offending is more serious, just as serious or less serious than that of Mr Luca.  In this case I agree with the prosecution that your offending is less serious than that of Mr Luca.

20In his sentencing reasons in the case of Luca, the Chief Judge comprehensively set out the relevant principles in relation to sentencing for riot. I will read that out but basically it means that not only are you responsible for your own behaviour but you take responsibility for what occurred in the riot as a general proposition. His Honour at paragraph 15 of his reasons put this:

"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."

21I accept His Honour's propositions there.  The Chief Judge in Luca acknowledged as I do that great weight should be given to the consideration of general deterrence for the offence of riot so that sentences make it less likely in the future that others will join in, will follow and join in a riot.  I adopt His Honour's categorisation and denunciation of this riot at the Melbourne Remand Centre as expressed in paragraphs 17 and 18 of his reasons.  His 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."

22Looking at the issue of parity with other offenders, I have not delved into a minute examination by way of comparison of your behaviour and background with those of other rioters.  I have acted on a general principle.  The cases I have looked at are useful comparisons to assist me here in my sentencing process.  The basic purposes for which a court may impose a sentence or punishment are general deterrence - that is, to try and send a message to others not to act in this way; specific deterrence - and that has some role to play here because of your criminal history, that is to try and get it into your mind not to reoffend; denunciation and protection of the community.

23In 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 this riot. 

24Because of the weight I have given to general deterrence, it is my view that a combined sentence and a community corrections order - which your counsel believed I should consider - is out of the range of the sentencing options available to me because of the serious nature of the offending. 

25I find it difficult to assess your prospects of rehabilitation.  I am encouraged by the interaction with your parents.  I accept your mother's evidence that it seems to her that you are no longer using drugs.  I have no empirical evidence of that.  It is very clear that if you were to go back to using drugs, your problems in the criminal justice system would reoccur. 

26Taking into account all of those matters and all the factors I have considered, on the charge of riot, I sentence you to a term of imprisonment of 15 months and I declare that you serve a period of eight months before becoming eligible for parole. 

27I declare that the period of one day that you have already served to be reckoned as part of the term of imprisonment I have just imposed.

28Pursuant to s.6AAA of the Sentencing Act, if you had proceeded to trial by jury and you were convicted, you would have received a sentence in the order of four years with a non-parole period of two and a half years.

29I make an order pursuant to s.464ZF(2) of the Crimes Act for the taking of a forensic sample.  I am satisfied in all the circumstances the making of the order is justified for the following reasons:  the seriousness of the circumstances of the offending and it is not opposed.

30I inform you that if when the police come around to take the forensic sample you change your mind and do oppose it, they may use reasonable force to enable that forensic procedure to be conducted.  There is that order, thank you.

31Are there any other matters I need to consider?

32COUNSEL:  No, Your Honour.

33HIS HONOUR:  All right, thank you.  If you take Mr Oudin out, thank you.

34Counsel are excused and I will get on to the next matter, thank you.

35COUNSEL:  Thank you, Your Honour.

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