Director of Public Prosecutions v Sarac

[2019] VCC 844

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-02070
Indictment No: F14168079

DIRECTOR OF PUBLIC PROSECUTIONS

v

RADE SARAC

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 June 2019
CASE MAY BE CITED AS:	DPP v Sarac
MEDIUM NEUTRAL CITATION:	[2019] VCC 844

REASONS FOR SENTENCE

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Subject:       Prison riot. Long delay. Late plea.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Lewis	Office of Public Prosecutions
For the Accused	Mr S. Tan	Sarah Pratt & Associates

HIS HONOUR: 

1Rade Sarac, you have pleaded guilty to one charge of riot.  You have admitted a criminal history.  The maximum penalty is 10 years' imprisonment.  The facts are set out in the prosecution statement, which is dated
29 May 2019.  That prosecution plea summary details some matters as to this riot generally and it hones in on your particular conduct.  There was footage showing your conduct and it was obviously far less extravagant than some of the other prisoners’ conduct.  You were assisting or encouraging the riot.  That is the way this case is being put.

2I am not going to set out that summary in any detail.  It is a very lengthy one and there were only really a few issues with that summary, being paragraph 47, and the contention that you were wrapping a shirt around your head to disguise your appearance, and paragraph 49, the contention that you were encouraging or directing another prisoner to actually damage some windows. 

3On the former point, as I understand it from your legal practitioner, your instructions are that you were wrapping your head to avoid tear gas.  It had not even been deployed at that stage and, though it was not too long until it was, I am certainly satisfied that you were in fact disguising yourself.  Even though I am satisfied of that beyond reasonable doubt, it is not a matter that affects the sentence here in any way. 

4As to the second issue, that is the gesture to a prisoner, it would be a matter of some aggravation if you were found to be encouraging another person to actually cause damage.  I am not here to be guessing about these sorts of things; maybe you were and maybe you were not, but I am not satisfied of that assertion beyond reasonable doubt.  I just do not know.  What is more important really, and, as I say, I am not going to descend to the full detail of your particularised conduct, it is set out in the actual summary of prosecution opening, but what is critical is that the Crown concede that which is obvious:  you were acting at a low level in this offence.

5That is to say you were not a leader.  You were certainly not someone involved in the planning of it, you were not an organiser.  You were not involved in causing any of the damage or engaging in any physical assaults or threats.  You were not smashing windows or equipment or doing what some were doing, that is throwing tear gas cylinders back in the direction of the SESG, or destroying documents.  You were not charging at prison officers and you were not inciting others to do any of those things.

6I mention all those things because enough people on that day were doing exactly that.  They were doing those things.  Well, you were not, so it is for that reason that I have said already, and I repeat, your conduct was obviously far less extravagant than much of the conduct that we can see in the footage.   But it was still done with a view to encouraging or assisting others.  That is the nature of the offence to which you have pleaded.

7You were interviewed by the police in the relevant time frame.  You made some admissions as to being observed on the footage, but you raised an aspect really of having had no choice.  That is, you were raising duress.  That was maintained right up until the matter settled on the first day of the trial.  A defence response asserted that the defence of duress applied in this case.  I am not saying that the setting was easy for any prisoner actually, any person who happened to be held at the time of this event, but you cannot have it both ways.  You admit by your plea that you were intentionally encouraging or assisting the rioters. 

8Mr Tan, who appeared for you, had filed some written plea submissions and they were marked as Exhibit 1 on the plea.  He took me to your personal background, as you heard, including your criminal history and also the chronology of this matter being before the court.  He placed before me a strong reference or letter from your wife as well as a prison work or employment passport, as well as a clean urine screen.

9He made submissions as to the nature of your involvement, what it did include, what it did not include, and how it should be characterised.  Quite aside from the oral submissions that he made, there is material touching upon these things in the written outline.  He relied upon your guilty plea, the presence of some remorse, the efforts that you have taken in custody since being remanded there in January of this year. 

10He conceded the inevitability of a term of imprisonment, but he argued that it may be open to combine that with a community corrections order.  He was not suggesting that your current pre-sentence detention period of 99 days would be sufficient but submitted that there was scope to have you serve some additional prison time before then being ultimately released onto a community corrections order.  He referred in his written outline to some of the other sentences imposed on other accused, but he argued in the alternative if I was against him in relation to the combination-type order, that a relatively modest non-parole period would be at least on the cards here.

11The prosecution had prepared detailed written sentencing submissions and they were marked as Exhibit D on the plea.  I am not going to set them all out here.  They were generally quite uncontroversial, speaking as they did of the principles of sentencing for this sort of offence, that is the offence of riot.  The written sentencing submissions from the prosecutor drew attention to some of the statements in a couple of cases of relevance, that of Kumas v The Queen [2017] VSCA 287 as well as the DPP v Luca [2016] VCC 1573.

12All those decisions obviously also had particular riot sentences contained within them, but it was more the principles that were being relied upon.  I will say more about the sentence in Luca later, but the principles are not in dispute.  The Crown placed before me two charts that were marked as Exhibit C.  Those charts contain a large table of sentences imposed on other people who have been dealt with by other judges for this riot.  In fact around 100 others have been dealt with for their role in this riot. 

13Now, whilst not ruling out a combination-type sentence, the court after all had an additional 12 months of prison time at its disposal,  Mr Lewis spelt out that such a disposition was a rarity in terms of the many previous offenders who had been dealt with by many other judges, and plainly that is so when one looks at the charts that make up Exhibit C on the proceedings.  I will come back to that.

Victim Impact

14There are a large number of victim impact statements and they have been filed provided by various prison officers, staff and emergency response units.  These are the people who were unlucky enough to be caught up in what was a terrifying event.  Those impact statements have been marked as Exhibit B.  As I understand it they are the same versions of documents that have been filed pretty much routinely in a large number of cases that have been brought before this court.

15I am not going to descend to the detail of them.  I have read them previously.  Plainly this event has had a very major impact on many of those who have been caught up in it.  I mean the prison descended, as you well know, to a state of complete chaos on this day and no one caught up in it will ever forget it.  You will not, but those who were trying to bring order never will.

16The prison staff and those seeking to break up the riot, well, they were just doing their job.  That job on that day exposed them to all manner of risk and it has obviously led to unfortunate and serious impacts that reverberate many years later.  The various authors report difficulties in their personal and professional lives.  I am not going to descend further into the impact material.  There really is nothing at all surprising about any of those sentiments that have been raised in that material.

17I do not sentence you for any physical damage caused or any direct threat issued by you.  That was not what you were doing.  That was not the nature of your involvement at all.  But still this riot has caused very significant and lasting impact to a number of people and you were part of it, intentionally encouraging or assisting it as you did.

18I do take into account the impact of this crime, as I am required to.

Background 

19I want to turn now briefly to your background and I have no reason not to accept your personal background as is set out in the plea outline placed before me and as supplemented by the oral submission made by your counsel, and indeed supplemented by the letter from your wife. 

20You were born in Serbia in January 1965.  You are 54 years of age.  You are an Australian citizen and I enquired directly as to that because of course there are very serious potential ramifications for those who are not Australian citizens in terms of cancellation of visas and deportation.  Happily that does not arise in this case, but it is why I enquired.  You were schooled to Year 12 over in Serbia.  You then did your compulsory military service and you then played soccer professionally for a few years. 

21You met your wife to be when she was young and travelling out to Serbia from Australia.  You married in 1987 and then followed her back to Australia where you continued to play soccer professionally and semi-professionally, and to coach.  You have two children of that marriage.  They are now of course adults.  They would be approximately 30 and 26 years of age by my reckoning and each have had significant health issues owing to deteriorating vision posed by macular degeneration.  That has arisen from about the age of 10 or thereabouts.  It has deteriorated over the years and that has not been easy for you or your wife or for them obviously and they are now legally blind, I am told.

22You had employment in a number of areas.  When you came to this country you had also some business interests, which at one point went sour and that left you bankrupt in around 2008.  It would seem then that the wheels fell off and you started using drugs and became addicted and this coincides really with your criminal history.

23There were a few relatively serious matters dealt with by partially suspended sentences, one up in this court on indictment for drug trafficking, one in the Magistrates' Court for possession of drugs.  At the time of the riot you were on a suspended sentence imposed for using a false document to the prejudice of another.  That was dealt with at the Sunshine Magistrates' Court on 4 March 2015. 

24You were then being held in custody in relation to some obviously very serious allegations involving a commercial quantity of drugs of dependence.  So that is what had you holed up at the relevant prison in June 2015.  Those matters ultimately did not proceed.  You were dealt with in late 2015 or thereabouts for other matters that did proceed and they were dealt with in the Magistrates' Court and you received a sentence, I am told, equivalent to your pre-sentence detention as well as a community corrections order, which you evidently then complied with, so a combination order was imposed.

25You have been living at home with your family, but for whatever reason you unwisely failed to appear in this matter last year when the trial was actually listed.  That was in November.  A warrant was issued, you were arrested in January of this year and you have been in custody since.  There has been a one-month sentence imposed since then, in March 2019, so your PSD obviously does not take into account that one month and stands currently at 99 days.  I am told there is nothing else outstanding.

26I have already mentioned the letter from your wife.  It is a very strong and impressive letter from her and I take it into account.  I do not see the need to further describe what she says.

27You have been doing courses and programs in custody.  You also have been working.  You still enjoy family support, as evidenced by that letter and indeed by the presence of your daughter and her partner, who are here today.  Your wife works.  As to your criminal history, I am not going to conduct a survey of it.  It is not a particularly lengthy document at all.  It certainly does not suggest to me that you are beyond hope, far from it actually.  It really is not too long a criminal record and it also starts pretty late in your life, which is consistent with the history given to me about the deterioration in your life at about the time that criminal history gets under way.

28You previously have complied with a community corrections order and you are currently serving to this point at least, when I look at your history, a lengthy period in custody.  You previously served I think 177 days in terms of the partial suspension order made in this court on the trafficking and drug offence.  So you have been in custody for longer periods, but this is certainly a decent period you have already spent in custody.  It is obviously not easy for you or for your family and your wife says as much in her reference.

Plea of Guilty

29I turn to some of the other matters that have been raised in mitigation.  The first of these is your guilty plea.  You have pleaded guilty, it is not an early plea.  You know that.  I must have regard not just to the fact of the plea but the stage at which the plea was entered.  Well, it is a very late one here, at the commencement of the trial.

30It is still of importance and it must be adequately recognised by me.  You have facilitated the course of justice.  You have at last taken responsibility for your crime.  It is a shame you did not do so earlier.  I say that because the case would have been done and dusted many years ago really when you think about it and an earlier plea would have also produced a greater discount in sentence.

31But having said all that, the community has still been saved the time and the cost and the effort associated with a contested hearing and witnesses have been spared the experience of reliving what was a traumatic event by giving evidence in court.  So there is a utilitarian benefit in pleading guilty, even as late as you have, and I take these various matters into account in mitigation.  I also take into account your cooperation with the police in the sense of your conducting an interview and answering questions. You did not need to, but you chose to and you made some admissions.

Remorse

32I turn now then to the issue of remorse.  A guilty plea is often indicative of some level of remorse, but that is not always the position.  Your guilty plea, as I say, was entered very late in the piece and it was entered against a setting of your claim of duress as provided in the police interview and that actual defence being relied upon in the defence response, which was filed as recently as in late May of this year, in the lead-up to the trial.

33I must say I cannot see any powerful or, for that matter, other evidence of remorse in the materials placed before me; I am, however, prepared to find that you do have some level of remorse at least as implied from the guilty plea, so I take that into account in mitigation.

Rehabilitation

34I turn now then to your prospects of rehabilitation.  You have, as I have said, a quite limited criminal record.  You had at some points a proven ability to work in the past as well as a supportive family.  Drugs have been a sizable enough issue at some stages in your life, obviously enough. You have previously complied with the community corrections order that was imposed in 2015 in combination and, as I say, that is a reasonably recent compliance.  You are doing your best in prison and, as I have said, you have ultimately pleaded guilty.  I conclude then that you do have actually quite positive prospects of rehabilitation.  They will be conditional entirely I think upon you desisting in any use of illegal drugs.

Delay

35I turn now then to the issue of delay.  Well, the riot occurred in late June 2015.  It was a massive riot, as you well know, and hence it was a very large investigation that the police had to engage in, so a delay between offence and the issue of a summons was quite understandable.  But it actually was not that great a delay, but once charged it just went haywire.  Here we are in 2019 and you are about to be sentenced.

36I am really not sure there is much benefit to you in my descending to what is a tortured chronology attached to the prosecution summary of opening.  That is part of Exhibit A.  The chronology spans over three pages.  It really defies belief.  I have read some of those previous transcripts obviously, because I was preparing for this trial to get under way and I was trying to get some understanding of what had happened all the way along here.

37There have been many changes of tack:  were you pleading, was it a trial, was there funding in place or not, was there a judge available?  On and on and on it went for years, including a failure to appear some time ago and also a failure to appear last year on the trial proper.  There were a number of different legal practitioners, one who died, and then that led obviously to the need for another or others to take over the case. 

38Mr Eidelson was that other at least at one stage and he acted for you and another accused simultaneously, which earned the wrath of a few judges in this court, I can tell you.  He then passed on the matter to Mr Maselli, who, on the only occasion I saw him, knew virtually nothing about the case when I saw him in November of last year.  He had not seen you for some months.  Indeed he had last seen you, he said, with a personal cheque in your hand which he did not actually take from you or bank or put into a trust account, but the sighting of that personal cheque led him to stand up in front of a judge of this court and to assure the judge that funding was in place. 

39Well, of course it was not and nor were you, because you did not even turn up in accordance with your bail and he then applied without any instructions from you, because he had not seen you, to adjourn the trial.  I did not adjourn the case, the trial remained listed on the date that you were bailed to appear and then you failed to appear.  Then I issued a warrant for your arrest.

40There is more I could say.  I think much more actually, having seen the performance of Mr Eidelson at length during the trial of Mr Sen and
Mr Maselli's performance on that one occasion.  But I am not sure there is much point in me saying much more.  I will say this, and it operates as something of an understatement:  I am really not sure that you have been particularly well served or well advised by various members of the legal profession.  Plainly that does not relate to the most recent practitioners.  The matter settled quite swiftly and sensibly upon a new practitioner taking up the reigns.

41So what I am going to do is resist the torture of going through this chronology in any detail.  There is no purpose in sifting my way through it and apportioning blame.  And if I did so, it really probably would not advantage you, because to some extent you also have dragged your heels.  The extent to which you have dragged your heels and others have dragged their heels, those who are representing you, is anyone's guess really.  So there is no purpose sifting through those dates.

42It will not advance your cause for me to do so, because fault is not the issue anyway.  There is no point me trying to work out or apportion blame here.  Insofar as you have done quite well in the period of the delay, that operates in your favour because I am sentencing you here, now, today.  If you had been off over the last handful of years committing offence after offence after offence, well, you could see how that would not advance your position, but that is not the reality of my position here today.

43The matter has been delayed and you have conducted yourself pretty well in the period of that delay, and so that is something that operates in your favour, because I have to make judgments about your rehabilitation.  Whereas four years ago there might have been some forecast as to your prospects over the next four years, I am looking back now and I can see how things actually have tracked.  That is a favourable outcome in terms of there being a delay.  There is nothing enjoyable about the delay, but you get the benefit of any sort of improvement and that does operate here.

Current Sentencing Practice

44Further, it is not easy having this matter over your head for these years and of course I take that into account.  I cannot give that significant weight for obvious reasons, but I take into account to some extent. 

45I have to take into account current sentencing practices.  That is only one of a large number of matters that I have to consider.  Now, the offence of riot was really a quite rare matter to ever come before the courts until this particular riot occurred.  Owing to the scale of this prison riot there have been a very large number of people who have been sentenced by this court, so there are a host of sentencing examples open to me that disclose sentencing practices for this crime. 

Parity

46I turn to the issue of parity of sentence.  I have been directed by the prosecutor Mr Lewis to the charts that have been placed before me.  It indeed has been common enough for judges to be taken to cases dealing with matters of principle, for instance the cases of Luca and Kumas that I mentioned, and then to be taken to a chart of so called comparable cases, or, for that matter, a chart of all the offenders who have been dealt with.  But more often than not judges have been taken in the case of low-level offenders to sentences passed upon low-level offenders to try and make some comparisons.

47I have engaged in this task myself, not just today but when dealing with Murphy and Connelly after they were each convicted following a trial last December.  The charts placed before me and marked as Exhibit C, well, they set out the actual sentences imposed on a variety of offenders.  The chart spells out something of the nature of their activity, a summary of it, and a number of those people we can see are described as being engaged at a low level.

48There are, it follows, then a large number of co-accused here, but they might even be co-accused you have never met in your life, because we are dealing with different sections of the prison who came together on this particular day.  Normally co-accused know each other.  You might have three people sitting off a bank all engaged in an activity; that is not the nature of the relationship here.  You were all in prison, you were all involved in the riot and to that extent you are co-accused.

49I say now then what I said when I passed sentence upon Mr Murphy and Connelly earlier this year, and I said it because it was the reality and it is confirmed by my reading the charts again today and some of the cases.  I could spend the next day in these reasons going through the various facts of all these other cases.  I could examine in each of those many cases the actual acts engaged, that is what was done as part of the riot by that particular person.  I could then examine the specific individual personal circumstances of those offenders.

50Were they old?  Were they young?  Did they have significant criminal history?  How many times had they been dealt with by a court, all of those sorts of things.  I could then look at the sentences passed upon them.  So the stage of the plea, the criminal history and so on and so on.  And I could do that and then come back to your case and it would get me nowhere.  I know that because I have done it before.  I will not find an identical player with an identical background and identical mitigatory factors.  They just do not exist like that.

51Even when I consider, for instance, Mr Murphy and Mr Connelly, who I dealt with, they had some very significant differences.  Well, of course they ran a trial, that is one significant difference.  But they had some very significant totality of sentence considerations flowing from other sentences that had been subsequently imposed upon them.  I am required to pay due regard to, and to apply the principle of parity of sentence, but, as the Court of Appeal stated in the case of Kumas, there is no particular difficulty in stating the general principles of parity.  That boils down to the proposal that like cases should be dealt with in a like manner.

52Well, that is pretty easy to understand and it makes good sense and what it does is it avoids any justifiable sense of grievance between various co-accused.  But the difficulty always is the application of these principles in the given case and that is, because as I have told you, there virtually is never an identical case.  There are more commonly differences in role and in individual personal circumstances.  Of course that is the position here.

53It is a difficult enough task when the same judge is sentencing a handful of offenders especially where there is variation in the conduct of individuals, as there plainly is in this case.  The Court of Appeal said in Kumas that it presents, as they said, singular difficulties when a judge is faced with an offence such as this involving a large number of offenders all with different roles, all with different personal circumstances, and with differing judges passing differing sentences at differing times.

54The Court of Appeal suggest that a sentencing judge really has no option but to adopt a practical and pragmatic approach to the principle of parity.  See paragraph 34 of that decision.  And that is what I will do, so I resist really the temptation to descend to the fine detail of the other offenders in these, my reasons.  Plainly your conduct was at a low level and that is conceded by the prosecution.  But that is not to say that it was not serious.  Riot as a crime after all is a serious crime.

Principles

55Let me deal with some principles relating to the sentencing of people for riot.  The crime of riot in part draws its seriousness from the combined actions of those within the group and the dangers of such group activity.  So it is not particularly profitable to focus purely on the individual acts of a given player.  I adopt the references in the Chief Judge's sentencing remarks in the case of Luca, to which I have been referred, as to the legal principles that come into play in this sentencing exercise.  I refer to paragraph 15 in that decision.

56The offence of riot is a very serious offence deriving its gravity from the numbers involved and the use of numbers to achieve the purpose.  It involves public alarm, because it is potentially dangerous, and there is the inherent danger of injury to persons or to property.  The level of violence used and the scale of violence are relevant factors and it is wrong in assessing the individual culpability of an individual participant to take the acts of that individual in isolation.  That is because the acts of the individual are not committed in isolation, which is the very fact that constitutes the gravity of the offence of riot. 

57A person who participates in riot bears some responsibility for the collective damage and harm caused.  I am, though, required to take into account the extent to which you are to blame and the part that you played.  It is plain that general deterrence should be given great weight in the sentencing task when imposing sentences for this crime.  It is serious indeed where the rioters act against law enforcement officers.  Here of course it was a prison setting where people were doing their job.  They were trying to maintain the good order of the prison and the common purpose of this riot was to disrupt the proper operation of the MRC.

58The prison setting therefore requires significant weight to be given to the principle of general deterrence.  You have pleaded guilty late in the piece, but nonetheless that provides a significant discount to you and you also have some level of remorse. 

59I have to exercise a sentencing discretion and I have to take into account a large range of factors including, for instance, the maximum penalty and the impact of the crime.  Also the nature and gravity of the offence, but I have already dealt with your specific acts.  They are spelt out in the summary of prosecution opening and I judge your role to be a low-level one and that is conceded.

60As to the riot generally, so I am moving away from the specifics of your involvement but to the nature of the riot more broadly, there really could be and is no dispute that this riot represented a very serious example of that crime.  I adopt the statement of the circumstances of the overall offending at paragraphs 2 to 10 in the case of Luca and repeated at paragraph 7 of Kumas, as well as Chief Judge's reasoning in paragraph 17 of Luca.  We have here the sheer scale, the duration, the prison setting, the scale of destruction and damage, the commission of acts directed against prison officers or, for that matter, people who were seeking to restore order and the sense really of total anarchy promoted on this day by this conduct.

61These various matters rank this as an extremely serious offence overall when considering the offence of riot.  You on the other hand of course had a low level of engagement.  You had the complete absence of any role in planning or organising or leading the riot.  You caused no property damage, you were not involved in any physical attack or threat or, for that matter, any incitement of others to do any of those things. 

62Watching the videos, as I did during the trial of Sen, there were very many who were obviously far more enthusiastic and energetic in their acts.  But riot is a serious crime and it is no answer to say that you were 'only' assisting or encouraging or ‘merely’ following others.  That is not mitigatory at all.  You were intentionally assisting or encouraging other rioters.  You must be punished for your conduct.  I have to do that justly and proportionately.  I must denounce this serious offending and of course that is an important consideration for this sort of crime.

63I need to consider the weight to give to specific deterrence.  That is the need to deter you from offending into the future.  I do not believe that specific deterrence is a significant matter here owing to your quite limited criminal history, my relatively favourable views in terms of at least your rehabilitation and the time that has passed since this crime.  For the same reasons then, I do not believe that community protection is a significant sentencing purpose at all in this case.

64However, given the nature of the offence and it taking place in a prison setting, it is plain that I must pay very strong regard to the principle of general deterrence in this case.  By general deterrence I mean this court's obligation to send a loud and a clear message to other people that offending such as yours will simply not be tolerated.  The message must be loud and clear coming from these courts:  prisoners choosing to join in or encourage or assist a riot in a prison setting must understand that such conduct will be met sternly by the courts.

65I have no choice at all but to pass a term of imprisonment upon you.  Prison is a disposition of last resort, but here there is no choice.  Mr Tan is not suggesting that you can be released immediately here today.  He argues that you could serve a further period in prison and the court could have you ultimately released onto a community corrections order. 

Combination Not Open

66I do not believe that it is open to me in your case to pass a combination-type order.  An outcome such as that would fly in the face of so many of the other sentences imposed in other cases of low-level offenders, including many of those who have pleaded guilty at the earliest opportunity. 

67Such a disposition would also not achieve all the purposes of sentencing.  In particular, in my view, it would not give adequate weight to the aspect of general deterrence which is so important in this case.  When regard is had to some of the other sentences imposed upon some of the other offenders, even on some low-level offenders, I will be imposing a quite moderate head sentence and I will fix a quite modest non-parole period in all the circumstances.  Whether you will be released on parole will be entirely in the hands of the adult parole board.

68It has nothing to do with me and I cannot even speculate as to whether you will be released or not.  When I say it is in their hands, I suppose really it is between you and them.  But it has nothing to do with me.  You would need to apply for parole and be looked on favourably by them.  It is possible, well possible actually that some of those who have entered early guilty pleas and been dealt with already, they have probably already served their sentences, they may look at the sentence that I am about to impose and query why your sentence and non-parole period imposed after such a late plea is as low as it is.

69Well, the answer is, I have an obligation to deal with you in what I regard as the appropriate fashion.  I am dealing with you many years down the track and that is never easy.  I am really not confident that until recently you have had much by way of any sensible guidance from any of your previous lawyers.  In the meantime, as this case has drifted along aimlessly, you have received and seemingly omplied with one community corrections order.  You have generally stayed out of trouble.  More recently still you have made some efforts, real efforts in prison doing courses and work.

70You have family support and your role in the riot was at a low level by virtue of statutory complicity in this case.  If I focused on the pure mathematics of the other sentences imposed on the other offenders that I see in that table, to the exclusion of the personal circumstances in your case, well, I can tell you, my sentence would be far higher than it will be.  But that is exactly what I must not do.  I cannot be a slave to the mathematics of this exercise and that is because I am exercising a sentencing discretion in your case and I have to pass an appropriate sentence upon you.  I am not dealing with those others.  I am sentencing you.

71Having regard to all these matters, I then pass the following sentence if you would stand up please.  Mr Sarac, on the charge of riot, I convict and sentence you to 16 months' imprisonment.  I fix a non-parole period of eight months in the circumstances.  You have been in custody on this matter for a period of 99 days and that period of pre-sentence detention is to be noted in the records of the court.  I have also taken into account in a broad fashion the one month that you have served, which is excluded from the strict pre-sentence detention calculation, as it was a sentence imposed upon you by another court in March of this year.

72Had you pleaded not guilty and been found guilty by a jury, I would have imposed a 27-month or two-year, three-month sentence.  I would have fixed a non-parole period of 19 months.  So, that is to be entered in the records of the court as well.  Just have a seat for a moment.  I will see if there is anything else that I need to deal with.  There are no ancillary orders are there?

73MR LEWIS:  No ancillary orders.

74HIS HONOUR:  Grab a seat.  Yes.  All right.

75MR LEWIS:  No ancillary orders.

76HIS HONOUR:  Any other matters that I need to deal with at all or not?

77MR LEWIS:  No, Your Honour.

78HIS HONOUR:  No?  Nothing else?

79MR TAN:  No, Your Honour.

80HIS HONOUR:  You will go down and see your client downstairs, Mr Tan?

81MR TAN:  Yes, Your Honour.

82HIS HONOUR:  So, he will understand, I am sure, that he gets the credit for the 99 days he has already served.  I have fixed a non-parole period of eight months.  It is not that far down the track that he will be in a position to be considered for parole but he will need to go through the mechanism of making the application.  So, he better get that underway I would have thought, sooner rather than later.  But in any event, you will go down and see him downstairs and have a chat.  So, that completes the matter then, Mr Sarac.  Mr Tan will come down and see you downstairs, all right?

83OFFENDER:  Thanks.

84HIS HONOUR:  All right, well, anyway, that is as far as we can take it here today.  So, yes, all right, look I will - thank you for your assistance during the trial anyway and during the plea as well.  So, yes, I will - 9.45 tomorrow, please.

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