Director of Public Prosecutions v Putrus

[2017] VCC 1689

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-17-00334

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAZIN PUTRUS

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 November 2017
CASE MAY BE CITED AS:	DPP v Putrus
MEDIUM NEUTRAL CITATION:	[2017] VCC 1689

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 G. Hayward
For the Accused	Ms C.L. Lynch

HIS HONOUR: 

1Mazin Putrus, you have pleaded guilty to one charge of riot.  You have admitted your criminal history which includes some driving matters, but also includes an aggravated burglary in July 2012 and an aggravated burglary in March 2012, both in the Broadmeadows Magistrates' Court.

2Fourteen victim impact statements were tendered but not read out, but I have read them and taken their contents into account.  They reflect the concern Corrections staff had for their personal safety during this riot, and you personally threatened on at least one occasion staff by some of your actions.

3The facts of the matter are set out in Exhibit 1, the prosecution opening.  Yesterday I made a ruling in respect of the disputed facts.  I will not now repeat that ruling.  The other matters set out in the summary were not disputed by your counsel.  Any reader of these reasons can refer to that exhibit to place the sentence in its full factual context.

4Briefly stated, after a number of protests at the Melbourne Remand Centre relating to the ban on the provision of tobacco products to visitors on 30 June 2015, approximately 200 to 300 prisoners in the Melbourne Remand Centre were involved in the largest riot in Victoria's correctional 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 prisoners then had to be relocated to other prison facilities, as large parts of the MRC were no longer operable. 

5Your role in the matter specifically is set out in Part B of the prosecution opening and in the prosecution submissions on sentence in paragraph 5.

6That offending conduct included kicking at fences before they were breached; attempting to lift a drop bolt on the CMC gates and throwing a wheelie bin at them; being among the first prisoners to enter the breached CMC; striking a wall inside the CMC with an oxygen tank from a BA kit; you armed yourself with three other armed prisoners, chasing after prison officers who were retreating to the gatehouse before encouraging other prisoners to join you; entering the canteen after it had been breached and taking items from it; throwing items at the CMC and helping to push a trolley into the CMC gates; being among the first prisoners to enter the breached Ballan unit; ripping a phone from its cord and throwing an item towards the Ballan Unit officers' post; carrying a fire extinguisher and spraying it in the air; re-entering the Ballan Unit, tipping over a cabinet and throwing items around; riding on the back of a prison tug as it rammed fences; driving a prison tug; dressing in a white body suit and throwing objects at prison officers; riding in a buggy towing a trailer of rocks that were thrown at prison officers; driving the buggy away when prison officers deployed teargas; joyriding in the buggy, causing it to flip; joining with another attack on the CMC, during which you helped push a buggy into the CMC gates.

7As I remarked in the ruling on the disputed factual matters, although you could not be described as a leader or planner of the riot, and you are not being sentenced as either, you were obviously an enthusiastic participant in it for a prolonged period.  I do not accept that on all occasions you were not acting on your own initiative, although on some occasions you were acting in the company of others. 

8When sentencing you, I do not just take into account your own actions but consider the scope of the riot.

9As has been discussed during the plea, the Chief Judge in the case of Luca, decided in this court on 24 October 2016, set out the relevant sentencing principles for riot.  At paragraph 15 of his reasons he 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 are not committed in isolation and that is the very fact that constitutes the gravity of the offence.  A person who participates in the 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 which he had played in the commission of the offence."

10I adopt those reasons.

11The Chief Judge acknowledged, as I do, 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 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:

"This riot was a very troubling disturbance of a very high order, measured either by the number of participants involved and the fact that the rioters acted against law enforcement or prison officers and the number of personnel required to restore order to the prison and secure the prisons, the sense of complete anarchy and a breathtaking scale of damage and loss actually caused."

12The prosecutor submitted that I consider the issue of parity and look at sentences imposed on other rioters.  I have forgotten how many rioters I have actually sentenced now, but it is a considerable number.  Looking at the issue of parity, I have not delved into a minute examination by way of comparison of your behaviour with those of other rioters.  The cases I have looked at are useful comparisons to assist me here in my sentencing process.

13The prosecutor invited me to conclude that your participation was greater than that of Mr Luca, and he set out the reasons why I should come to that conclusion in paragraph 7 of his submissions.  I accept his distinction between your actions and those of Mr Luca.  He submitted that then I should impose a greater sentence than the one imposed on Luca. 

14The Court of Appeal has considered this question of parity and, in particular, comparison with Mr Luca in the case of Kumas [2017] VSCA 287, a decision of Judge Allen of this court, and I adopt the principles set out in that as to how
I should consider parity, in particular, in sentencing for this riot, and I have looked at Luca in the same way that the Court of Appeal has urged me to.

15At paragraph 39 the court said:

"In our view, it was understandable - and entirely appropriate - that the sentencing judge would look to the sentence imposed in Luca, it being the first in the series of sentences imposed (and to be imposed) on the large number of prisoners who took part in the MRC riot.  Indeed, in order to be faithful to the principle of parity, in the circumstances the judge had no option but to do so."

16The Court of Appeal made it clear that the particular circumstances of each of the rioters is a very important factor of the sentencing process.

17The prosecutor conceded:

(1)       that there is a real risk that you will be deported and this will weigh              heavily upon you whilst you are in custody; and

(2)      your decision to become initially involved was an unintelligent one, and          in light of your intellectual disability, your moral culpability is lessened       and that there should be some moderation when considering general               deterrence.

18Your counsel filed written submissions, tendered exhibits and made oral submissions.  I have carefully considered all of the material and the submissions that she made. 

19You are currently in custody, as has just been discussed, arising out of a sentence handed down by His Honour Judge Punshon on 12 December 2016 when you were sentenced to two years four months with a non-parole period of 16 months.  That non-parole period has now expired, its expiry date being
17 August 2017.  You are still in custody for that matter.  You have effectively been in custody for the best part of three years.  You have no pre-sentence detention for this riot matter.

20Your counsel thus submitted that I should look at the principal of totality, and
I have done so.  She acknowledged that although your plea was a late plea, it should still attract a discount, and you will be given the appropriate discount because it shows some acceptance of responsibility by you for your behaviour and has saved the court the time and expense of a jury trial. 

21Ms Lynch told me that you arrived in Australia at the age of 19, in 2008, from Iraq via Syria.  All of your family are here and they have been supporting you in court.  You worked in a panel beater shop.  You are not a citizen of Australia, and in the two tendered letters from the Department of Immigration and Border Control, it is clear that your visa has been cancelled because you have failed the character test.  I am satisfied on the basis of that material that there is a real likelihood you will be deported.  This will increase the burden of imprisonment upon you as, although you arrived here with your family, if deported, you will leave without them, and I have taken that into account.  I am told they are a good and supportive family and I accept that.  Ms Lynch submitted that you were not a leader or planner of the riot, and as I have said, I accept that also.

22A report from psychiatrist, Alice Crole, was tendered.  During the plea
I expressed reservations about this report, which I still have, as the writer had not viewed the video of your involvement.  I do not accept that your actions could be described as she did at paragraph 42 as "being easily led and manipulated by people."  The psychiatrist set out your background and administered an IQ test.  You scored an overall IQ of 70 and it was concluded that you have a mild intellectual disability. 

23In paragraph 34, she said you have impulsive traits indicated by your occasional hasty manner of responding to items on the WAIS-1V.  "Presence of an intellectual disability increases the likelihood of impulsive actions.  Individuals with an intellectual disability may be less likely to control their behaviour.  This can lead to expression of irritability and aggression."

24Your counsel submitted that I should consider the case of Verdins and its applicability here.  However, as the case of O'Neill makes clear, a submission in relation to Verdins requires a rigorous evaluation of the evidence, and as I indicated during the course of the plea, the sufficient connection between your mild intellectual disability and your offending here has not been made out.  It has to be a realistic connection with the offending, it must have been caused or contributed to the offending or be causally linked to the offending.  For the psychologist to have considered that issue, at the very least she should have been able to view the video of your behaviour. 

25In my view, the proper way to consider your intellectual disability, as set out in the case of Sokaluk [2015] VSCA 48, which considers the different approaches taken by the courts in relation to Verdins and Muldrock, and, in my view, it seems to me that the Muldrock principles are applicable to you.

26I have taken your intellectual disability into account in the way that I have just described and also in the light of the concession made by the prosecutor, and thus it entitles you to some moderation in respect of general deterrence.

27Your counsel submitted that you have guarded prospects of rehabilitation and, with respect, I suggest that might be overstating it.  I do not have any great confidence in your prospects of rehabilitation.

28She submitted the urine tests, which go from 13 September 2016 to 3 October 2017, an affidavit of Brendan Francis Money, an assistant commissioner in Corrections Victoria, which sets out what you have been doing in custody.  Amongst other matters, it sets out material at paragraphs 39, 44, 45, 50, 51, 53, which suggests to me that you are not really serious about doing much about any drug problems that you have, although on occasions you can produce negative urine samples. 

29She addressed me on the issue of parity, which I have already remarked upon.  She submitted that at the time of the offending you were aged 25 and I should take that into account, and I have.  She said your criminal history was reasonably limited, and I agree with that submission.  Your drug use increased during 2015 when you added GHB to your use of ice.  Not a very good combination.

30The basic principles for which a court may impose a sentence of punishment are general deterrence, that is, to try and send a message to others.  Specific deterrence plays a role here because of the prolonged nature of your actions during the riot.  General rehabilitation, denunciation and protection of the community are matters I have to look at.  In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability, your personal circumstances and the effect it has had upon prison officers and other staff involved in the riot.

31As I said, I have taken into account all of the submissions made by your counsel, in particular:

(1)      your plea of guilty;

(2)      your intellectual disability;

(3)      the fact that I accept it is likely you will be deported;

(4)      the support of your family;

(5)      the issue of parity, which I have discussed; and

(6)      the issue of totality, which I have also discussed. 

32As I remarked during discussion this morning, it is an invidious position I am placed in when considering the issue of totality, however, I have to do the best I can.

33In relation to the riot, I sentence you to a term of imprisonment of 30 months. 
I direct that 12 months of that sentence be served cumulatively upon any sentences you are currently undergoing, and I fix a parole period in respect of the sentence I impose today of 12 months.

34I declare, pursuant to s.6AAA of the Sentencing Act, that if you had pleaded not guilty and you were found guilty by a jury, you would have been sentenced to at least six years with a non-parole period of four.

35Are there any other orders I have to consider?

36MR HAYWARD:  No, Your Honour.

37HIS HONOUR:  Ms Lynch?

38MS LYNCH:  No, Your Honour.

39MR HAYWARD:  Just, Your Honour, at the outset of your sentencing remarks you were talking about his previous convictions.  I may have misheard, but the way it sounded to me is it sounded as if he had two previous convictions for aggravated burglary.

40HIS HONOUR:  Have I read that incorrectly?

41MR HAYWARD:  He has one previous conviction for aggravated burglary, which attracted a sentence of a CCO on ‑ ‑ ‑

42HIS HONOUR:  Which he breached.

43MR HAYWARD:  And it was the same ‑ ‑ ‑

44HIS HONOUR:  All right.  Thank you.  His priors have played no great role in my sentencing reasons, as I said.  All right, thank you, Mr Hayward.

45Any other maters I need to consider?

46MS LYNCH:  No, Your Honour.

47HIS HONOUR:  All right.  Thank you.  You can take Mr Putrus out.  Thank you for coming up, Ms Lynch, and thank you, Mr Hayward, for your assistance.

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