IN THE COUNTY COURT OF VICTORIA
Revised
Not Restricted
Suitable for Publication
AT MELBOURNE
CRIMINAL JURISDICTION
CR 16-01313
DIRECTOR OF PUBLIC PROSECUTIONS
v
JOHNATHON LUCA
---
JUDGE:
HIS HONOUR THE CHIEF JUDGE (JUDGE KIDD)
WHERE HELD:
Melbourne
DATE OF HEARING:
24 October 2016
DATE OF SENTENCE:
24 October 2016
CASE MAY BE CITED AS:
DPP v Luca
MEDIUM NEUTRAL CITATION: [2016] VCC 1573
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
REASONS FOR SENTENCE
--Criminal Law - Sentence
1 charge of Riot – Metropolitan Remand Centre Riot June 2015 – early
guilty plea – utilitarian benefit - youthful offender – fair prospects of
rehabilitation – continuation of first period of imprisonment - role in
offending – not ringleader, but still played a significant role.
Sentencing Act 1991, s.16(3); Corrections Act 1995
R v McCormack & Ors [1981] VR 104; De Castres v The Queen; Kent v
The Queen [2011] VSCA 377; Caird (1970) 54 Cr.App.Rep. 499; R v
McCormack & Ors [1981] VR 104; R v Sari [2008] VSCA 137; El-Waly
[2012] VSCA 184; Stevens [2009] VSCA 81; DPP v Hinton, Petersen &
Hamment [2008]VSCA 34
2 years and 5 months imprisonment.
---
APPEARANCES:
Counsel
Solicitors
For the Director of Public
Prosecutions
Mr K. Gilligan
OPP
For the Accused
Mr S. Lindner
Tait Lawyers
.MT:SB
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DPP v Luca
HIS HONOUR:
1
Johnathon Luca you have pleaded guilty to one charge of Riot which carries a
maximum penalty of 10 years' imprisonment. Your offending occurred on 30
June 2015 when you were aged 21 years of age. You were a remand prisoner
at the Metropolitan Remand Centre (MRC). You are now 22 years old.
CIRCUMSTANCES OF OFFENDING
2
A prosecution opening was tendered on the plea. No issue was taken with
the facts as such. The plea was directed to how I should characterise your
role, based upon these undisputed facts. It is therefore sufficient for me to
provide an overview of the summary of facts.
Overview of events
3
I turn first to an overview of the events in which I am endeavouring to
summarise Part A of the prosecution opening.
4
On 30 June 2015, 200-300 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 of the prison, to force authorities to suspend, amend or reverse the ‘no
smoking’ policy.
A total smoking ban was due to commence in Victorian
prisons on 1 July 2015. Peaceful protests were held by prisoners at the MRC
in the days leading up to the riot.
5
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 (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.
.MT:SB
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DPP v Luca
6
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 (CMC) was
breached for a second time. It had essentially ceased by 11pm.
7
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.
8
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.
9
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
repairs and maintenance of the MRC.
10
In all, 102 offenders have been charged in relation to the riot.
11
There is evidence that the riot was planned, though I hasten to add that you
were not involved in this.
Your specific role
12
I now turn to your specific role which is a summary effectively of Part B of the
prosecution opening. Your specific role includes the following specific actions
which were captured on the CCTV footage:

.MT:SB
Your actions span the time frame of 12:09pm to 2:46pm;
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DPP v Luca

At the commencement of your participation shortly after midday, you
covered your face by wearing a black coloured t-shirt on your head;

You then assisted two prisoners to also cover their faces;

You were part of the first wave of prisoners to enter the CMC building.
There you were observed attempting to smash the numerous security
glass windows with a pole. At one point you left the pole with other
prisoners only to return soon after where you continued with your
attempts;

You were involved in looting the canteen;

You entered three accommodation units with other prisoners (the
Ballan, Burnside and Chartwell units). They sustained considerable
damage;

In the Ballan unit at one point you gratuitously pushed a large cupboard
off the officer’s desk onto the ground. You appear to give instructions to
other prisoners whilst waving a torch around;

You pulled a meal trolley in the general direction of the entry to the
raceway and left it with another prisoner. (Trolleys were later used
there as a barricade);

For a period of time you seen were in possession of breathing
apparatus and a mask. Indeed you were walking around with the
breathing equipment strapped to your back. Tear gas was employed by
prison staff during the riot;

At one point you armed yourself with a metal pole or a pole of some
kind and headed to the Chartwell Unit where you proceeded to use the
pole to smash several windows and holes in the front door;
.MT:SB
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DPP v Luca

You also stood in close proximity to other prisoners when one of them
used a tractor to knock down fences;

At one point you commandeered and drove an electric “tug” vehicle
along a fence line;

You appeared from time to time to engage verbally with other prisoners
about what was taking place. I have already made reference to what
occurred in the Ballan unit. Further, at another location you stopped
two prisoners who were driving a stolen tractor, pointed and appeared
to give them directions.
13
On 4th July 2015, you penned a letter to your then partner. At the time of
writing this letter, you were in lockdown within MRC as a result of the
extensively damaged prison. You wrote that:

“The whole joint is smashed to bits. Every unit, even the slot”;

“We got the Allen keys from maintenance and got all the people in the
slot out as well ha ha”;

“Paying for it now, cells disgusting, windows broken, no TV or lights”.
Victim impact statements
14
There were seven Victim Impact Statements tendered by the Prosecution at
the plea hearing. They have been made by prison officers at the MRC. The
overwhelming themes arising from these statements is that the riot had a
major impact on the staff at the MRC. Several have reported difficulties in
both their professional and personal lives since the riot.
Some have
experienced flash-backs, which have disturbed their sleep. The stress has
affected their satisfaction at work, and has also affected their home life and
relationships with their families. Some sustained physical injuries, although it
is not put by the prosecution that you were responsible for inflicting any of
.MT:SB
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DPP v Luca
these injuries directly. It has affected the way that they now interact with the
prisoners on a day-to-day basis.
LEGAL PRINCIPLES FOR RIOT
15
The following propositions emerge from the Victorian and interstate authorities
about the offence of riot1:

Riot involves an assembly of people intending to assist each other, by
force if necessary, in pursuit of a common purpose;

The offence of riot is a very serious offence. It derives its gravity from
the simple fact that the persons concerned were acting in numbers and
using those numbers to achieve their purpose. It involves public alarm
because it is currently or potentially dangerous. It usually carries with it
an inherent danger of injury to persons or property or both;

The level of violence used (in relation to persons or property) and the
scale of the violence are factors relevant to sentence;

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;

Great weight should be given to the consideration of general
deterrence for the offence of riot. The sentences must make it less
likely in the future that others will follow in joining in a riot;
1
Caird (1970) 54 Cr.App.Rep. 499 at p.505-508; R v McCormack & Ors [1981] VR 104 at pp.108-109; R v
Sari [2008] VSCA 137at [62]-[65]
.MT:SB
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
The offence of riot is more serious where the rioters act against law
enforcement officers in the execution of their duties;2

The fact that the riot occurred in a prison setting confirms the
importance of general deterrence. Even though the authorities which
support the proposition that deterrence assumes particular importance
where offending takes place in a prison setting are generally concerned
with prisoner upon prisoner assaults, the rationale behind this principle
must apply with similar force to a prison riot. The courts cannot permit
the law of the jungle to take hold in prisons.3
ASSESSMENT OF GRAVITY OF OFFENDING
16
In light of the principles outlined above, I must make an assessment of the
gravity of the overall riot and an assessment of your own contribution to it.
17
As to the gravity of the overall riot, I consider this to be a very serious example
of this type of offence. It is hard to make a comparison of riot offences given
there are so few. But the sheer scale of this prison riot makes this 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.
2
3
.MT:SB
R v McCormack & Ors [1981] VR 104 at 109 (lines 28-40)
De Castres v The Queen; Kent v The Queen [2011] VSCA 377 at [1], [10], [26]-[36]
7
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DPP v Luca
18
While minor physical injuries and psychological harm was caused, thankfully
this was not a riot which resulted in serious physical harm or injury. I take this
into account but, self-evidently, a prison riot of this scale carried with it a very
high degree of risk to the personal safety and security of the prison officers
and other public servants involved. It caused significant fear.
19
As to your specific role I accept your counsel’s submission as to the following:

You were not one of those involved in the planning or organizing of the
riot. I sentence you upon the basis that your participation was not premeditated;

Your specific contribution was confined to the acts, and to the period of
time, identified by the prosecution in Part B of its opening between
12.09pm and 2.46pm. The riot continued beyond this time. By 11pm it
had ceased. This is when you surrendered. You were not directly
involved in all the damage that occurred, such as the destroying of
fences, or the lighting of fires, or the second breach of the CMC;

You did not personally physically attack any police officer or prison
officer and you did not physically engage in any violence against any
person.
20
However, I find that while you did not play the role of a ringleader, you did play
a significant role:

You quickly joined in this riot as it gained momentum. You had
instructed your counsel that you were in company with a prison officer
when the riot began. You said you were effectively given a choice to
stay with the officer or join in and you chose to join in. In any event your
wholehearted embrace of the riot is evidenced by your placement of
the disguise over your face. In my view, this was an attempt to achieve
.MT:SB
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DPP v Luca
anonymity and represented a clear intention by you to behave in a
riotous manner;

You also encouraged other prisoners to participate by helping two
prisoners disguise themselves and by at times giving instructions or
pointing out things to others;

Your enthusiasm is apparent from the CCTV footage;

Next, while you did not participate throughout the entirety of the day,
your direct participation of 2 hours and 40 minutes could hardly be
described as isolated or passing;

Your participation in this riot went well beyond merely adding your
number and voice to the riot or indulging in its consequences. Your
actions were many and varied and included mindless criminal damage
to several buildings, a task you attended to, I might add, with single
minded determination.
21
Your counsel submitted that some of your actions were somewhat aimless,
even innocuous.
22
Your counsel submitted that when you were waving the torch and giving
instructions to other prisoners in the Ballan unit you were warning other
prisoners that a fire or fires had been lit, and that they should leave the area
for their safety.
23
It was put to me that while you wheeled a meal trolley a short distance, you
did so with no particular purpose in mind and then abandoned it.
24
While your counsel accepted that your possession of the breathing apparatus
equipment would have enabled you to continue with your participation in the
riot, given the deployment of tear gas, he submitted that you did not think it
through to that extent.
.MT:SB
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DPP v Luca
25
In a similar vein it was also submitted that the driving of the electric tug
vehicle, and the putting on of the white protective overalls, were all acts done
with no particular purpose in mind.
26
In my view, there is something artificial about these submissions. When your
actions are assessed within the context of the entirety of your conduct, I am
left in no doubt that you energetically participated in the riot, with purpose.
While I am not able to conclude with precision what you had in mind on each
of the occasions to which I have just made reference, you were acting with the
object of promoting and furthering the riot. That much is clear. This includes
contributing to the general state of anarchy. You were not some misguided
prisoner who was reluctantly and aimlessly swept up into the unfolding
disturbance.
27
More specifically I reject the fire warning explanation which your counsel
placed upon your waving of the torch while you were giving instructions to
other prisoners in the Ballan unit. There is no evidence of a fire or fires on the
CCTV footage at the relevant time in that unit. Indeed the prosecutor
confirmed there was no fire in the Ballan unit at that time, and this accords
with the chronology of events as set out in the depositions. I note that in the
end, your counsel did not take issue with this evidence. What the footage
instead shows is you strutting around the unit with a large, black Maglite-style
torch in your hand. At one point you can be seen pushing a large piece of
furniture off a desk and onto the ground, your commitment to damaging it
evident by the fact that you were required to push it twice in order to topple it.
28
I hasten to add that I raised with your counsel on the plea that I was not
presently persuaded by your counsel’s submissions about the characterisation
of these acts. He indicated to me that he would not be calling you to give
evidence and indeed you did not give evidence on the plea.
.MT:SB
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DPP v Luca
29
Your counsel also submitted that your letter to your partner did not amount to
an admission by you that you were directly involved in obtaining the keys and
releasing prisoners from their cells. He submitted the use of the word "we" in
the letter was a reference to the prisoners as a whole, and involved an
element of big noting on your part. Given that there is no other evidence that
you were directly involved in the obtaining of the keys and releasing prisoners,
I am not satisfied beyond reasonable doubt, based upon this letter alone, that
you were so involved. However, as I said on the plea, the letter still constitutes
a powerful admission that you strongly identified yourself with the rioters and
with the riot itself, something which is equally apparent from the CCTV
footage.
30
Finally I note that on the plea your counsel disavowed reliance upon the claim
recorded in the report of Mr Bernard Healey, psychologist, that had you not
participated (or appeared to participate) in the riot you would have been
beaten by protagonists or the offenders.
CRIMINAL HISTORY
31
You have had several court appearances in the Children's Court and in the
Magistrates’ Court. Your prior offending includes criminal damage and various
offences of personal violence (assault and resist police, recklessly cause
injury, intentionally cause injury, unlawful assault).
While they were each
dealt with by a ‘without conviction’ disposition, such offending still has some
relevance to your current offending.
32
You have one subsequent matter. On 17 February 2016, at the County Court,
Melbourne, you pleaded guilty to charges of recklessly cause injury, criminal
damage, and two charges of negligently cause serious injury and some
related summary offences, in relation to an incident which occurred in the
early hours of 16 April 2015. You were sentenced by Judge Pilgrim to a total
effective sentence of 3 years and 6 months' imprisonment with a non-parole
.MT:SB
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DPP v Luca
period
of
2 years, with a declaration that 307 days had already been served (from 16
April 2015).
33
A number of people attended at your house in relation to a dispute over the
ownership of a vehicle in your possession. You came out of your house
holding a pole and after an exchange you hit one of them with the pole to the
face and right ear causing bleeding. The people fled and in the process you
caused damage to the car they were driving using the pole. You then got into
the car and sped towards them, ramming their car several times. They kept
driving, fleeing from you and you followed them. They went through a red
light, colliding with another vehicle, and then smashing into a pole in the
median strip. You fled the scene, but later returned on foot, interfering with the
work of the emergency services who attended.
Two women in the car
suffered serious injuries, with one of them left permanently disabled.
MATTERS PERSONAL TO YOU AND MITIGATING FACTORS
Personal background
34
Your family and educational history and the challenges you have faced in your
life, including your drug abuse, were summarised in the two reports tendered
on your behalf on the plea, namely the report of Mr Bernard Healey,
consultant psychologist, and the YSAS report of Mr Dale Doran dated 13
September 2016.
35
You are the youngest of 5 boys (now aged from 33 to 22 years). You and your
brothers were raised by your father, John Luca, when your mother moved
away from the family home. Mr Luca senior is a cabinet-maker, with his own
business. While you suffered separation anxiety as a result of your mother’s
absence your father provided loving and considerable care.
.MT:SB
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36
Schooling was described by you as ‘difficult’.
You attended five schools
overall, although you completed your Year 12 equivalent year at 16/17 years
old.
37
Unfortunately your involvement with drugs commenced soon after you left
school and you were then unable to find employment.
38
In custody you have taken courses in Occupational Health and Safety, food
handling, barista training, English, basic mathematics and Dealing with
Gambling Addiction (you admit to becoming very involved with ‘pokies’ at local
clubs). Your ability to take courses was hampered by the custodial restrictions
placed on you in the management units, and I will return to this issue later.
39
Under the auspices of YSAS ‘Youth Junction’, between 2013 and 2015 you
took part in drug treatment programs and community support services in the
western region.
40
Your counsel further submitted that you have instructed him that you have not
used any illicit drugs while you have been in custody.
41
You have experienced depression, and you having also been on antipsychotic medication. Your mental health and medication has been well
monitored in custody. No reliance is placed upon Verdins In this plea.
42
As to your work history, you have had several short-term, unskilled jobs,
mainly picking, packing, landscaping and labouring.
Visits and telephone
contact have been maintained with your family while you have been in
custody. You intend to live with your father when released from custody. It is
planned that you will undertake a cabinet-making apprenticeship with your
father upon your release, with a view to ultimately joining him in the business.
Totality
43
.MT:SB
The principle of totality applies here in several overlapping ways.
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44
First, given that you are undergoing the current Judge Pilgrim sentence with a
non-parole period, I am required, pursuant to s.14 of the Sentencing Act 1991
to fix a single new non-parole period. I must consider the total sentence that
would have been imposed had all offences fallen for consideration on the one
occasion or the same occasion.
45
Second, since you were charged in relation to this matter you have effectively
been serving a sentence in relation to another matter, namely the Judge
Pilgrim matter. There was also no pre-trial detention to be declared in your
case for this riot matter. You were charged with this riot on 24 December
2015. However, you were then on remand for the Judge Pilgrim matter. When
you were sentenced for the Judge Pilgrim matter on 16 February 2016 your
entire time in custody to that date was reckoned to have been served under
the Judge Pilgrim sentence. Since that time you have been serving the Judge
Pilgrim sentence. So you entire time in custody is attributable to the Judge
Pilgrim matter. I will take this into account in a general way under the principle
of totality.4
46
Third, it was also submitted by your counsel, and accepted by the
prosecution, that I should take into account that between July 2015 and July
2016 you were housed in management units in lockdown type conditions due
to overcrowding of prison facilities, even though this arose because of the riot
in which you participated. This factor was never taken into account in the
Judge Pilgrim sentence. Some 13 months in such conditions, as unavoidable
as it may have been, is a considerable period of time. I was told by the
prosecution and the defence that not all prisoners involved in the riot
experienced these reduced, overcrowded or lockdown conditions and not for
this length of time. It follows that by comparison with other prisoners – even
some of those involved in the riot – you experienced additional hardship. I will
take that into account. Your counsel accepted, however, that the benefit here
4
.MT:SB
El-Waly [2012] VSCA 184 at [107]-[114]
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DPP v Luca
should be reduced by the fact that some of this hardship was, at least initially,
self-inflicted in that it was immediately caused by the riot in which you
participated.5 The credit or benefit you get for this is a question of degree.
47
I was told there are no provisions reversing the usual presumption of
concurrency. The prosecution submitted that this was not a “Prison Offence”
for the purposes of s.16(3) of the Sentencing Act 1991 because Riot is not an
offence defined as a “Prison Offence” under the Corrections Act or
Corrections Regulations.
Plea of guilty – utilitarian discount
48
You pleaded guilty at the earliest practicable time, at committal mention.
49
I am told you are one of the very first prisoners charged with the riot to plead
guilty and certainly that is so in this Court. I understand you will be the first to
be sentenced. You receive credit for the objective utilitarian benefit through
the saving of time and resources associated with the running of a committal
and a contested trial. Your counsel submitted that the benefit of encouraging
pleas carried particular weight in a case like this where you are the first – or
one of the first – offenders to plead guilty to an offence involving so many
charged co-accused.
Your plea and then your sentence may encourage
others in determining whether to plead guilty, he submits. While it is not
possible to quantify any such benefit, it does have that potential at a practical
level, so I do accept the broad thrust of this submission. It may be that it
overlaps with, or better fits within, your subjective willingness to facilitate the
course of justice, given the difficulty of measuring the benefit. Either way I will
give it weight.
Remorse and insight
.MT:SB
50
I have found it difficult assessing your remorse.
5
Stevens [2009] VSCA 81 at [18]-[24]
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DPP v Luca
51
You did not participate in a record of interview with police – you made no
comment. The letter you wrote to your partner – even accepting that it was
something in the form of bragging – is inconsistent with genuine contrition.
The report of Mr Bernard Healey, consultant psychologist, tendered on your
behalf reveals no evidence of remorse. Your counsel did not suggest
otherwise. As I mentioned on the plea hearing, the impression one gets from
a reading of the report is that you tend to minimise your role by focusing on
what you did not do in this riot, rather than upon what you clearly did do.
52
Your insight into your offending is also not fully developed. I am, however,
prepared to infer some remorse and acceptance of responsibility from your
plea of guilty. This is because it was such an early plea which, as I have
found, has some significance in this case.
Youth
53
You were 21 years old at the time of the offence and are 22 years of age
today. I take into account your youth and the need to allow for your
rehabilitation in sentence. That said, while your youth remains an important
consideration, and requires more weight to be given to encouraging
rehabilitation than would be the case for an older offender, the nature of this
offending means that the importance of youth must give some ground to the
consideration of general deterrence.6 Youth cannot be given its usual
prominence in the imposition of this sentence for your offending.
Prospects for rehabilitation
54
Assessing your prospects of rehabilitation is also not easy.
55
You are not a youthful person with an otherwise good character. You have not
taken the opportunities which have been provided to you in the past to learn
6
.MT:SB
R v McCormack & Ors [1981] VR 104 at 110; Azzopardi v The Queen (2011) 35 VR 43 at [44]
16
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DPP v Luca
from your mistakes and to reform. Being on remand for serious charges did
not deter you from joining in this riot. I am also concerned that your insight
and remorse in relation to this offending is not advanced.
56
On the other hand you are still youthful.
57
The sentence I am about to impose on you will represent a continuation of the
first time you have been imprisoned. Your first time in prison will serve as a
significant incentive to turn your life around.
58
The offending before me and the Judge Pilgrim matter are obviously serious,
but by comparison with your non-conviction priors, they represent a significant
escalation. However, your offending at that higher level is not entrenched.
59
You have taken the opportunities given to you in prison to undertake various
courses.
60
I am encouraged by your early plea which, to some extent, constitutes an
acceptance by you of your responsibility and a desire to put this behind you
and move on in your life.
61
Further, while this offending was not drug related, much of your criminal
history is drug related and you have demonstrated a willingness and capacity
to rehabilitate yourself in terms of your drug offending. Your mental health is
well managed. When you are released from prison you will be that much more
mature and you should be a less troubled man than when you went into
custody.
62
A cabinet-making apprenticeship with your father is awaiting you upon your
release.
63
It was submitted by your counsel that your prospects for rehabilitation are
‘sound’. While there is room for some optimism here, I am more circumspect
than that. I view your prospects as fair. They really are in your hands.
.MT:SB
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DPP v Luca
Current sentencing practice
64
Prosecutions for this offence in Victoria are rare.7 As such it is not possible to
discern any current sentencing practice.
I must approach the matter by
reference to first principles.
65
A number of sentences were brought to my attention but they were largely
from other jurisdictions and mostly involved offences with different maximum
penalties, or indeed involved affray not riot.8 They are of assistance for the
principles they espouse, especially the riot cases, but they are not of great
assistance in identifying a sentencing practice or pattern for this offence in
Victoria.
Conclusion
66
It is clear that this offending warrants something more than a short or sharp
term of imprisonment for the purposes of just punishment, denunciation,
general deterrence, and the protection of the community. The sentence must
also specifically deter you from re-offending. I must, however, balance against
these considerations your mitigating circumstances. Given your youth, and the
fact that you do have some prospects, I want to provide you with the
opportunity to make good your reform. That is not only in your interests, but it
is also in the community’s interests. I must balance all of these factors and
while all these factors impact upon each component of the sentence,
I propose to give you a shorter non-parole period than I would otherwise have
done in light of your youth and to encourage your efforts towards
rehabilitation.
Sentence
7
8
.MT:SB
Two were brought to my attention - R v Sari [2008] VSCA 137; DPP v Hinton, Petersen &
Hamment [2008]VSCA 34
These were outlined in a written Crown submission handed up at the plea
18
SENTENCE
DPP v Luca
67
Before I sentence you I re-state that you are currently serving a total effective
sentence of 3 years and 6 months' imprisonment with a non-parole period of 2
years for the Judge Pilgrim matter.
68
For the offence or Riot I sentence you to 2 years and 5 months' imprisonment.
69
I direct that 21 months of this sentence be served cumulatively upon the
Judge Pilgrim sentence you are currently serving. That then makes for a
global total effective sentence across both the Judge Pilgrim matter and this
Indictment of 5 years and 3 months.
70
I am required to fix a new single non-parole period. This will relate to both this
matter and the Judge Pilgrim matter. It will commence today. You have
already served 557 days of the Judge Pilgrim sentence – a little over 18
months. I must take into account that you have already served that period
when fixing your new single non parole period. In the end, the minimum
period you must serve for both matters will effectively be the period of time
you have already served to date under the Judge Pilgrim sentence plus the
period of time you will be required to serve as a minimum under the new nonparole period, which will commence today.
71
I fix a new single non-parole period of 18 months' imprisonment.
72
Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I indicate that had you
not pleaded guilty I would have sentenced you to 4 years' imprisonment on
the current indictment. I would have sentenced you to a global total effective
sentence across both the Judge Pilgrim matter and this indictment of 6 years
and 8 months imprisonment and I would have fixed a new single non-parole
period of 2 years and 10 months.
.MT:SB
73
Anything else, gentlemen?
74
COUNSEL: No, Your Honour.
19
SENTENCE
DPP v Luca
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.MT:SB
20
SENTENCE
DPP v Luca