Director of Public Prosecutions v Petak

[2017] VCC 1117

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00586

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDDIE PETAK

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 August 2017
CASE MAY BE CITED AS:	DPP v Petak
MEDIUM NEUTRAL CITATION:	[2017] VCC 1117

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 S. Ballek
For the Accused	Ms M. Tittensor

HIS HONOUR:

1Eddie Petak, you have pleaded guilty to one charge of riot.  You have admitted your criminal history, which includes a number of drug offences over a period of time ranging from 2008 to 1995, and includes a recklessly cause serious injury in 1996. 

2You are currently serving a sentence imposed by His Honour Judge Taft on a charge of recklessly cause serious injury, imposed in 2016.

3MS TITTENSOR:  November, 18 November.

4HIS HONOUR:  Thank you.  The sentence was a head sentence of 30 months with a non-parole period of 15 months.  The non-parole period expired on
30 June of this year.  Parole has not been considered, pending the determination of this matter, and that is a factor that I have taken into account.  However, I emphasise that I have not taken into account whether you would or would not have got parole, but the fact that you were not able to apply for it.

5The head sentence release date is 27/09/2018.  The facts of the matter are set out in the prosecution opening (Exhibit 1), and your role in the matter is set out in Part B of Exhibit 1.  I'll not refer to the facts in any detail.  Apart from the matters I will mention shortly, they are not disputed by your counsel.  Any reader of these reasons can refer to that exhibit to place the sentence in its factual context.

6Briefly stated, after a tobacco ban was imposed by the government on Victorian prisoners, peaceful protests were held in the days leading up to 30 June 2015, and on that day approximately 200-300 prisoners were involved in the largest riot in Victoria's correction 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 the prisoners then had to be relocated to other prison facilities due to large parts of the MRC no longer being operable.

7It is not put, and I do not sentence you, on the basis that you were in any way a leader or organiser of that riot.  The behaviour that is ascribed to you, as I said, is set out in Part B of Exhibit 1. 

8Your counsel takes issue with a number of factors in that, and upon a viewing of the video, I make the following findings:

9Objection is taken to the facts set out in paragraph C of Part B, in which it is alleged you are observed kicking against the railway fence.  I accept that the action that I saw, which appeared to me to be two pushes by your foot on the fence, was not of such a nature as to cause any damage to the fence, or to bring the fence down.  Indeed, to describe it as kicking seems to me to be an over-description.

10In paragraph 10, issue is taken with actions of you being close to Mr Moussa, one of the, it is said, riot leaders, and also issue is taken with you pointing to a particular area of the prison, and there afterwards, a number of prisoners followed you to that area.

11As to why you were standing near Mr Moussa, and what, if any, intent you have would lead me to indulge in speculation, and I make no finding apart from the fact that you were standing near him.

12Similarly, with your directions to lead others to a different part of the compound at that time, as to why you were doing that again would be for me to engage in speculation, and I make no finding, apart from observing what it was you were doing on video.

13Objection is taken to paragraphs 12 and 13 of Part B as to why you went to the Chartwell Unit.  Again, for me to speculate in the absence of any evidence as to why you went there - apart from the fact that it occurred, would be speculation.

14Fourteen victim impact statements were tendered, they were not read.  I have considered the contents, they show the fear and concern for safety of the Corrections officers involved, and I have taken their contents into account.

15In mitigation, your counsel relied on: 

16(1) your early plea of guilty, I accept that it is an expression of remorse by you, and has saved the court the time and expense of conducting a criminal trial, and you will be given the appropriate discount;

17(2) it is submitted that you had a limited role as to your actual offending, and I accept that.  But of course, as I will return to this topic in a minute, you still are part of the riot;

18(3) you've expressed remorse, not only to - through your counsel by your plea of guilty, but also to the psychologist whose report was tendered;

19(4) she relied on the affidavit that was tendered by Jennifer Anne Hosking, an assistant commissioner with Corrections, as to what you have been doing in gaol, and a number of programs and urine drug screens were tendered;

20(5) you have been involved in a release-related harm reduction program, and a semi-intensive drug and alcohol treatment program, the 44-hour one, and also a number - 13 drug screens were taken and you were found to be negative.

21In the affidavit of Jennifer Hosking, your movements post the riot set out - there were some, prior to them, minor indiscretions about tobacco, et cetera.  You were transferred on 16 October 2015 to Port Phillip, where you were a mainstream prisoner.  You were undertaking a cleaning course there.  You were then transferred to Barwon on 2 November 2016.  Again, as a mainstream prisoner.  You have been working at a prison factory, but you have a problem with your back so it is sometimes limited.  As I have said, you have completed those courses.

22It is said in the affidavit that in 2017 you have been respectful and polite to prison officers;

23(6) your counsel, as did the prosecutor, addressed me on the issue of parity.  As I explained during the plea hearing, I do not believe it is part of my job to minutely examine factors that are common to each of the co-offenders and factors that are not common, but to attempt as best I can to place you in the general scheme of things of the people that I am sentencing for this offending, I was referred to a number of cases, and I have considered those;

24(7) I was asked to look at the issue of totality, which I have, because of course you have already served a substantial period of time in prison;

25(8) the issue of delay.  Delay is a factor here, not only because it has enabled you to - whilst in custody, to demonstrate some prospects of rehabilitation, but as I have already remarked, the delay has meant that you have been unable to apply for parole;

26(9) I was told that when released, you will go to your mother and stepfather's property in Ballart, where you have some items.  And hopefully you might resume your life there;

27(10) your counsel relied on your personal background, which is set out in the report of Ian McKinnon, a consultant psychologist, and your counsel has written submissions to me.  Briefly stated, you were apparently a smart child at school, but unfortunately began drinking alcohol and smoking cannabis when you were 15, and by the time you were 19, you were using amphetamine and eventually heroin.

28Mr McKinnon said you had nil psychological disorder, your functional intelligence was within the normal adult range, and you do not appear to be suffering with any major psychological disorder.  In his view, you do not possess an inherently antisocial or criminal character.

29In your explanation of why you decided to become involved in this riot, you said it was safer for you to join the mob mentality.  In his view, you expressed genuine remorse to him, and he opined that you have good prospects of making some progress towards rehabilitation and not reoffending.

30I have taken all those factors into account. 

31In sentencing you, I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure as far as possible offenders are rehabilitated into society.  I express my denunciation of the behaviour.

32The basic purposes for which a court may impose a sentence of punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community.  In 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 those of the victims. 

33During the course of the plea, I referred to the reasons for sentence of the Chief Judge of this court, Kidd CJ in the case of Luca, which was handed down on 24 October 2016.  Mr Luca, in my view, had a much more serious role in this riot than you did, but His Honour at paragraphs 15-17 set out the legal propositions that I should consider when considering the offence of riot, and I accept what His Honour set out. 

34In particular, quoting from paragraph 15, in the fourth point His Honour said:

"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 played in the commission of the offence".

35In paragraph 17, His Honour set out his view of the gravity of the riot, and I adopt what he said there in that this is a very serious example of this type of offence.

36Taking all those factors into account, on the charge of riot I sentence you to a term of imprisonment of 15 months.  Eight months of that is cumulative with any sentences you are currently serving.  I fix a non-parole period to begin today for a period of six months.

37I declare pursuant to s.6AAA of the Sentencing Act that if you had proceeded to trial and you were convicted by a jury, you would have received a sentence in the order of three years, with a non-parole period of two years.

38Any other orders I need to make?

39MS TITTENSOR:  No, I do not believe so, Your Honour.

40MR BALLEK:  No Your Honour. 

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