Director of Public Prosecutions v Sepehrana

[2018] VCC 1289

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00259

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAHA SEPEHRANA

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2018
DATE OF SENTENCE:	17 August 2018
CASE MAY BE CITED AS:	DPP v Sepehrana
MEDIUM NEUTRAL CITATION:	[2018] VCC 1289

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward
For the Accused	Mr R. De Kretser

HIS HONOUR:

1Taha Sepehrana, you have pleaded guilty to one charge of riot. The maximum penalty for this offence is ten years' imprisonment.

2You have admitted your prior convictions. Your prior criminal history to the point of the riot on 30 June 2015 is extensive, but all custodial periods noted on your prior criminal history before the riot had been served by way of youth training centre detention.

3The Crown tendered a Summary of Prosecution Opening as Exhibit A, which provided an extensive overview of the course of the riot in general and of your participation in it.  On 24 October 2016 His Honour Chief Judge Kidd sentenced another offender, Jonathan Luca, for his participation in the same riot.  I adopt from those sentencing remarks the overview of the events that occurred on 30 June 2015:

On 30 June 2015, 200 to 300 prisoners at the MRC were involved in the largest riot in Victoria's correctional history.  Evidence indicated the protest by prisoners on 30 June 2015 was planned with the intent of disrupting the routine to the prison, to force authorities to suspend, amend or reverse the 'no smoking' policy.  A total smoking ban was due to occur in Victorian prisons on 1 July 2015. Peaceful protests were to occur.

During the riot, fences were breached, prison vehicles (including the use of a tractor) were used to cause damage to gates and fences.  The Central Movement Control" -  which I will refer to as the CMC - "was stormed twice, the canteen was looted and multiple accommodation and non-accommodation units were significantly damaged. That damage included the use of makeshift weapons to smash windows, damage to equipment and fixtures inside the units and the lighting of fires both inside and outside the units.

It took 15 hours for prison officers, police and fire brigade personnel to restore order to the prison and secure all prisoners. The riot appeared to have been in an acute state for a shorter period of time: from approximately 11:40 am, when some prisoners began congregating and chanting for tobacco, through to the late afternoon when the Central Movement Control was breached for a second time. It had essentially ceased by 11 pm.

Prison officers and public servants were forced to flee the grounds for their own safety. A number of prison officers reported minor physical injuries, including inhalation of chemical agents, which were thrown back at them by prisoners. Other minor injuries occurred during physical clashes with rioting prisoners at the CMC. Some staff reported psychological injuries, such as recurring nightmares and ongoing stress, as a direct result of the threats and fear inflicted by the prisoners.  A large number of the prisoners then had to be relocated after the riot to other prison facilities due to large parts of the MRC no longer being operable.

As at 11 April 2016 the Department of Justice had incurred $12.1 million worth of costs relating to the riot, of which approximately $6.89 million related to the repairs and maintenance of the MRC.[1]

[1]DPP v Luca [2016] VCC 1573 at [4] – [10].

4Now, it is apparent that the net effect and scale of the riot was vast.  The riot itself was marked by prisoners:

·tearing down and breaching security fences;

·disguising their faces to avoid identification and detection;

·using metal bars and other items as weapons;

·looting the canteen and property of prison officers;

·throwing items at prison officers who were trying to restore order;

·engaging in widespread property damage;

·using prison vehicles to damage property; and

·threatening and taunting prison officers.

5For their part, the prison officers:

·were forced, along with public servants and contractors, to flee from various parts of the prison;

·the prison officers repelled the attacks with riot gear and tear gas;

·they used personal protective equipment and breathing apparatus in the course of the riot;

·they suffered physical injuries through chemical inhalation and through some of the interaction with prisoners; and

·some suffered psychological injuries to varying degrees which, for some staff members, appear to still be ongoing.

6I have already said something of the direct cost of repairs and maintenance caused to the State by the actions in which you participated.  On top of these were the many hidden or indirect costs which go beyond prisoner movements and relocations and extend to the administrative burden the riot caused.  Furthermore, there was a huge operation undertaken to identify those involved in the offending.

7Your offending is outlined in the Summary of Prosecution Opening.  It was in part captured on the prison’s CCTV footage.  A summary of your role is as follows.  You:

·initially kicked at the Area 3 fence;

·went through the breach in the fence between areas three and two;

·disguised your face with your T-shirt;

·picked up and swung a wheelie bin at the CMC gates;

·tugged at a fixture near the CMC gates;

·moved in and through the canteen, and took some items from the canteen;

·pushed the metal cart towards the CMC;

·you were affected by tear gas; and

·you entered the Ballan unit.

8Your involvement in the matter lasted from about 11:45 AM until you were last seen at 1:20 PM - a period of about 95 minutes.

9You disputed two of the allegations against you. First, you disputed the allegation at paragraph 9 of the opening, which alleged that you picked up a piece of broken chair and used it to strike a window inside the CMC. I watched the footage of this in court several times.  I am firmly satisfied that you were doing exactly that, that you picked up a piece from a broken chair and used it to strike at a window inside the CMC.

10You also dispute that after exiting the CMC you went back to the area 3 yard, where it alleged that you waved in a: "Come over here" gesture to other prisoners near the CMC gates.  It is alleged that you were doing so to encourage other prisoners to enter the CMC during the riot.  Again, I watched the footage of this several times in court.  After watching it, I am not satisfied that your gestures were necessarily meant to encourage other prisoners to enter the CMC.

11I note that you were released from prison on 3 July 2015.

12You were interviewed and charged with riot and sabotage on 17 December 2015.  An application for summary jurisdiction made on your behalf was refused on 30 November 2016 and a Committal hearing was conducted on 14 February 2017.  You intended to and did initially plead not guilty.  I was told that the matter resolved on a different basis to the original allegations. In that way, your plea of guilty, although somewhat late, is to a modified set of allegations.

13You were remanded in custody on 15 March 2018 and you have now served 155 days presentence detention, excluding today.

14I have been provided with 14 victim impact statements from prison officers at the MRC.  None of the injuries or difficulties that they have suffered are directly attributable to your conduct.  Many, however have suffered ongoing difficulties in their professional and personal lives.  It is apparent that the stressful effects of the riot will be felt by them to varying degrees for some time to come.  It is apparent that the actions of all of you have taken a toll on staff who were exposed to your criminal acts.

15I now turn to your personal circumstances.

16You are 26 years of age and you were born in June 1992 in Tehran.  Your father was both violent and alcoholic. Your mother fled Tehran with you and your younger sister in 1998.  You lived with a maternal uncle.

17You estimate that you attended 10 different primary schools and four secondary schools as you moved around suburban Melbourne.  Unsurprisingly, you had learning difficulties at school, initially language difficulties, problems making friends due to frequent relocation and you were a victim of bullying.  At the age of approximately 13 you ran away from home and started mixing with older youths.  A local church in Knox arranged accommodation for you, but that did not last because of your behavioural problems.

18You finally left school in Year 9.  It had been a largely unproductive exercise and you were frequently involved in altercations with other students.

19From 2009, you appeared frequently in the Melbourne Children’s Court charged with an array of offences.  You have served several periods in detention in youth training centres.

20Between 2011 and 2015 you were not before the court.  You worked intermittently as a painter and in a towing business.  Your problems with the law recommenced in 2015 when you got involved in the use of cocaine and steroids.  Your problems with drugs have continued up to recent times.

21On 4 June 2015, you were remanded in custody for a large number of driving offences, criminal damage and reckless conduct endangering serious injury.  As I have noted, you were released on bail for those offences on 3 July 2015.  On 10 February 2016, you received a sentence of 34 days' imprisonment with a two-year CCO in relation to those matters and also, as I have noted, you faced charges and a committal hearing in relation to the riot and then on 21 July 2017 you were charged with further driving offences, possession of cartridge ammunition, possession of drugs, failing to answer bail and contravening a family violence order.  You received a sentence of 63 days' imprisonment, with a further 18 months' CCO.  You were also dealt with for breaching the previous CCO.

22On 13 February 2018, you were remanded on a charge of rape.  Again, as I have noted, your bail was revoked in relation to this matter.  I am not sure of the status of your previous remand, but I was assured that the time on remand since 15 March is to be counted as presentence detention for this matter.

23Mr De Kretser, who appeared on your behalf, tendered the psychological report of David Ball dated 19 July 2018.  Mr Ball concludes that you suffer from significant antisocial personality features and a dull to normal intellect.  He concludes that you meet the diagnostic criteria of severe antisocial personality disorder and severe stimulant use disorder in early remission.  Further, the psychologist concludes that you have a history of impulsivity and recklessness.

24It is important to note that you were not under the influence of drugs at the time of the riot.  Mr Ball states that:

"Mr Sepehrana impressed me as a low functioning individual with impairment to his capacity for generally good judgement.  He has a history of failing to learn from previous mistakes and a deficient ability to plan and execute positive and self-sustaining behaviour.  History taking indicated that he is a socially isolated and alienated man living on the fringes of the community."

25Your difficulties have continued in prison.  You are currently held in a management unit and I was told that you were recently stabbed whilst in prison.  Nevertheless, you have been working making pallets in prison and you are now sorting bolts.  You also completed a commercial cleaning course.

26You have some prospect of working in a tyre business or tyre factory upon your release.

27I also note that you have recently been reconciled with your mother.  It appears that your current partner has done much to heal the rift between you and your mother

28Mr De Kretser expressly disavowed a reliance on Verdins principles.

29Both prosecution and defence counsel submitted that I should find your prospects of rehabilitation are, at best, guarded.

Analysis of your role

30I turn now to consider your role in the offending.  In the Prosecution Outline of Submissions tendered on the plea, as Exhibit B and in the submissions made before me, the Crown submitted that so far as it may be useful to draw comparisons between your actions and those of other prisoners previously sentenced by this court, your offending was less objectively serious than that of the prisoner to whom I have already referred: Jonathan Luca. Overall, Mr Hayward who appeared on behalf of the Crown submitted that, using the broad range of “high”, “mid” and “low”, your actions should be seen as falling in the high end of the low range.  Mr de Kretser, who appeared on your behalf, agrees with this characterisation of your role.

31I am satisfied that the role you played in the course of the riot was indeed objectively less significant and serious than that of Luca.  It is necessary to make that comparison in order to achieve a consistency of sentences between you and others involved in this riot.

32Although your actions may not have been as objectively serious as Luca, they were still significant and were still serious.

33The very serious nature of the offence to which you have pleaded guilty can be seen by simply looking at the elements set out in the charge.  That is, that:

·you assembled together;

·with intent to carry out the common purpose of disrupting the prison;

·to assist one another by force against anyone opposed to you in the execution of that purpose;

·and you executed that purpose in a violent manner; as to cause alarm to another person of reasonable firmness and courage.

34The wording of the charge to which you have pleaded guilty makes it clear that it would be wrong for me to simply look at your conduct and participation in isolation.  Rather, they were the acts, of 200 to 300 of you; and where over 100 of you have been charged with this criminal offending.  By your participation in the riot, you must bear some responsibility for the collective damage and harm that was caused.  Nevertheless, I will take into account the extent to which you were morally culpable for your offending and for the part that you played in the commission of the overall offence.

35Great weight must be given to the principle of general deterrence for the offence of riot.  The sentence I impose upon you must serve as a warning to make it less likely in the future that others will act in this way.  Of course, in saying this, I will take into account a number of personal factors that  will have the effect of mitigating the sentence I impose upon you.

36The offending in this case is made more serious by the fact that you and your co-offenders as prisoners acted against law enforcement officers in the execution of their duties. As His Honour the Chief Judge stated in Luca at [15] "the courts cannot permit the law of the jungle to take hold in prisons".[2]

[2]De Castres v The Queen; Kent v The Queen [2011] VSCA 377 at [1], [10], [26]-[36].

37It is not suggested that you were involved in the planning or organisation of the riot.  You were not a ringleader.  I therefore sentence you on the basis that your participation was not premeditated.

Matters put on the plea

38Mr de Kretser submitted that your sentence should be mitigated by the plea of guilty. I agree that the plea in this case has a utilitarian benefit.  Moreover, I am told that you have expressed your regret for your involvement in the riot and that you acknowledge the damage, disruption and the impact on prison staff and others.  To this extent, I consider that the plea should be taken as exhibiting some insight and remorse.  You should get the benefit for that.

39Further, it was submitted that although your prospects for rehabilitation are guarded, you do have the benefit of family support and the prospect of employment on your release. Moreover, it was submitted that your time in custody is more onerous for the fact that you must serve it in a management unit where your time out of the cell is more limited than that accorded to mainstream prisoners.  I accept that this should be given some weight in mitigation of your sentence.

40Both your counsel and the prosecutor referred me to the cases of McKenna, Benson and Fikhman.  Overall, Mr Hayward submitted that the role played by Benson was the most similar to your own conduct, although Benson had a further point of difference in that he had completed two CCOs after the riot.

41In the end, whilst it is necessary to have regard to the principles of equal justice, I must form my own view as to the appropriate sentence for your offending, taking into account your individual circumstances.

42In my view, it is appropriate to give you the opportunity to be released on parole after serving a non-parole period.  Given the matters raised in Mr Ball's report, it is obvious that you will need a firm structure and support on your release back into the community. 

43On the charge of riot, Mr Sepehrana, you are convicted and sentenced to a period of 15 months' imprisonment, with eight months to serve. I declare the period of 155 days pre-sentence detention reckoned as already served. Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your plea of guilty, you would have been sentenced to a term of two and a half years, with 20 months to serve.

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