Director of Public Prosecutions v Abdullah-Watts

[2017] VCC 1128

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00538

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAWUD ABDULLAH-WATTS

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 August 2017
CASE MAY BE CITED AS:	DPP v Abdullah-Watts
MEDIUM NEUTRAL CITATION:	[2017] VCC 1128

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. Heywood
For the Accused	Mr W. Barker

HIS HONOUR: 

1Dawud Abdullah-Watts, you have pleaded guilty to one charge of riot.  You have admitted your criminal history which although is not extensive does contain some relevant matters for violence on 30 April 2014; similarly, contravening a family violence intervention order in 2013, unlawful violence in 1998.

2You are currently serving a sentence which is not on your criminal history for the purposes of this sentencing but I need to know about it as I have to set a new non-parole period.  On 20 November 2015, you were sentenced to a term of imprisonment of six years and four months with a non-parole period of four years for offences of violence amongst others that were committed on
2 November 2014.  Your release date on the head sentence of that sentence would be 2 March 2021 and with a non-parole period, if you were to be released on parole, that would be 2 November 2018.

3Fourteen victim impact statements were tendered.  They detail the fear and concern for their safety of prison staff and I have taken their contents into account.  The facts of the matter are set out in the prosecution opening, Exhibit 1, in a comprehensive fashion.  Any reader of these reasons to place a sentence in its total factual context will need to go to that summary to understand what occurred.

4Briefly stated, after a number of protests at the Melbourne Remand Centre relating to the ban on the provision of tobacco products to prisoners.  On 30 June 2015, approximately 200 to 300 prisoners at the MRC 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 to large parts of the MRC no longer being operable.

5Your role in the matter, starting at your specific role in the incident, is set out in Part B of the prosecution opening.

6In summary, your actions during the riot include: entering the CMC disguised; carrying a pole outside the canteen; entering the canteen and taking items from it; entering the Ballan Unit after it had been breached and reaching into the officer's post; kicking in a fence between units; putting on a BA kit; entering the breached Attwood Unit, taking a box and damaging a phone; again taking possession of a pole; fuelling fires; throwing items at a unit; forcing open a fire hose cabinet; watching co-offender Kelly breach fences with a tractor; standing defiantly against prison officers; being part of the second successful breach of the CMC, armed with a pole at one stage, throwing debris at another stage and entering the CMC when it was breached; entering the Billingham Unit with your head covered and with a pole.

7You were not a planner or organiser of the riot.  Parity is an important sentencing consideration here.  Both parties have referred me to sentences imposed on co-offenders.  The prosecution's position is that I should impose a sentence similar to that imposed on co-offender Luca, referred to in the prosecution written submissions.  Luca was sentenced by the Chief Judge of this court on 24 October 2016.  In his sentencing reasons, the Chief Judge comprehensively set out the relevant principles in relation to sentencing for riot - see paragraph 15 of the reasons - and I accept His Honour's propositions.  And in particular, the proposition that in assessing the culpability of an individual participant, it is wrong to the acts of the individual participant in isolation.

8That 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.  However, a sentencing judge should nevertheless take into account the extent to which the offender was to blame for the offence and the part in which he had played in the commission of the offence. 

9His Honour acknowledged 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 follow in joining in a riot.

10I adopt His Honour's categorisation and denunciation of this riot at the MRC as expressed in paragraphs 17 and 18 of his reasons.  His Honour said and I repeat;

"[T]his 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.".

11Your offending here was opportunistic and although you were not a prime mover or organiser of the riot, your behaviour was enthusiastic in promoting and furthering the riot.

12In sentencing you, I do not intend to delve into a minute examination or comparison of your behaviour with that of other rioters.  The cases referred to by both counsel are useful comparisons to assist me here in my sentencing process.  For example, in comparison with the co-offender Luca, you participated long after he stopped. 

13In mitigation, your counsel relied on a number of matters in his written submissions and oral submissions.  He relied on (1), your early plea and I accept that it is an early plea thus you get the benefit of that.  It shows remorse and also it has saved the court the time and expense of a jury trial; (2), he set out your family background, not only in his written submissions but also in the two references tendered on your behalf from your father and also your stepmother.

14You come from a good background.  Your father is in fact a professor of social policy at RMIT University.  Your mother had a difficult mental health issue which led to the breakup of the family.  Your father says he has a closer loving relationship with you.  He says he believes that you feel genuine remorse for your conduct.  He outlines that you did not complete your secondary school but became involved in the use of marijuana.  You converted to Islam and subsequently married an Egyptian woman with whom you have had four children, the eldest of whom is visiting you whilst in custody.

15A mounting cycle of domestic violence, your father says, led to the breakdown of the marriage.  You began to use marijuana and methamphetamine leading to increasingly unstable and sometimes violent behaviour.  That is reflected in your intervention order convictions.  He believes that whilst you have been in custody, you have virtually been drug free.  He says that basically, you are a very good, kind, thoughtful and intelligent, generous person.  However he makes the point, and it is well made, that these good qualities are prominent when you are not using drugs.

16You have had a good sporting career.  You played basketball and football at good levels.  You have had a varied work career in the hospitality industry, as a butcher, a market researcher, a car washer and in the security industry for some eight years.

17You have done a drug and alcohol course whilst in custody.  In her reference, your step-mother sets out how although your father and her divorced, she has had continued contact with you through your life.  She says she regards as an intelligent man and natural sportsman.  She says you are devoutly committed to the Islamic faith.  She outlines the chronic mental health problems experienced by your mother and the disruption that caused to your childhood stability.

18She says your use of cannabis is problematic.  She says you are a loving father and proud of and deeply connected to your four children.  She has been visiting whilst in custody.  She is of the view that you are deeply ashamed of the crimes that you have committed. 

19Three; your counsel submitted that your time in custody would be onerous because of the limitations placed upon prisoner movement.  However, as the prosecutor correctly pointed out, as you were a participant in the riot that submission has a limited effect.

20An affidavit was tendered from Jennifer Anne Hocking who is an acting assistant commissioner with Corrections.  She set out in that affidavit the effect that the riot had upon the movement and confinement of prisoners. 
In particular, in connection with you she details the minor items of burnings in your cell in September 2015 when you were referred to governor's disciplinary hearing.  It seemed to be that had something to do with your desire for tobacco.

21On 3 December 2015, you were transferred to Barwon where you were classified as a mainstream prisoner.  You indicated you wanted to complete courses and were waitlisted for drug and alcohol courses.  On 20 December 2015, you commenced work in the prison factory.  On 17 March 2016, you provided a positive urine sample indicating the presence of buprenorphine.  Your counsel obtained instructions from you that somehow, you decided to use methadone to cope with depression and that led you to become dependent on it and obtain that drug from a fellow prisoner.  However, other screens had been taken and although there are no results, I would assume they were negative.

22At a case management review in July 2016, it was reported that you engaged well with other prisoners and you were polite.  You were working in the factory and currently, on 27 April 2017, you were working as a laundry billet or assistant.  You have enrolled in an engineering course and submitted an application for a mathematics course.  You are on a waiting list for the high intensity violence intervention program.

23As a passing comment, can I say that when sentencing prisoners in custody, affidavits such as that file are very useful to a sentencing judge and I would encourage it in many other cases.

24Four, your counsel, - your counsel submitted that I should consider the sentencing principality of totality - that is, because you are already serving a significant sentence, in imposing a sentence here I should look at totality; five, he submitted that you had prospects of rehabilitation, as I understand it the possibility is that you will live with your father when you are released.  I find it difficult to assess your rehabilitation but as is set out in the affidavit, I am encouraged that you are participating positively in programs whilst in custody and are usefully employed.

25Six, your counsel submitted that your prior convictions were limited; seven, he asked me to consider the issue of parity which I have already spoken about.  Taking into account all the matters put by both parties and the cases referred to, in sentencing you I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community to seek to ensure as far as possible offenders are rehabilitated into society.  I express my denunciation of the behaviour.

26The basic purposes for which a court may impose a sentence or punishment: general deterrence, specific deterrence which has a role to play here because of your criminal history, general rehabilitation, denunciation and protection of the community.

27In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and the effect it has had upon the prison officers and other staff involved in this riot.

28Both parties agree that in connection with the sentence imposed on the
20 November 2015, you have served 1,016 days; that is two years, nine months and 12 days.  So I have indicated that sentence was one of six years, four months with a non-parole period of four years.

29Having considered the issue of the comparison with the co-offenders, I am satisfied that your offending is slightly more serious than that of Mr Luca. 
Thus on the charge of riot, I sentence you to a term of imprisonment of 30 months.

30I direct that 18 months of this sentence is to be served cumulatively upon the sentence imposed on you on 20 November 2015 and that makes, as
I understand it and please correct me, gentlemen, if my arithmetic is wrong, a total global effective sentence from across both of those sentences of seven years and ten months.

31I am required to fix a new single non-parole period.  It will commence today.  In fixing that, I must take into account the fact that you have already served the period I have mentioned.  In the end, the minimum term that I fix will effectively be the period of time you have already served under that sentence plus the period of time you are required to serve under the sentence I impose today.

32I direct that the new non-parole period be fixed for a period of 28 months, to commence today 14/08/2017.  So in effect, the total non-parole period will be the two years, nine months, 12 days plus 28 months from today.

33Pursuant to s.6AAA of the Sentencing Act, but for the plea of guilty, your sentence I would have imposed would have been a total effective sentence of four and a half years with a non-parole period of two and a half years.  That of course is not taking into account the six years, four months and four years sentence I have referred to.

34You can just sit down for a moment, thank you.  Gentlemen, have I got that arithmetic correct?  I shall just go through it again.

35MR HAYWOOD:  Yes, thank you, Your Honour.

36HIS HONOUR:  It is 30 months for the riot.

37MR HAYWOOD:  Yes.

38HIS HONOUR:  That is two years and six months which means that the total - the global effective sentence is seven years and ten months.

39MR HEYWOOD:  That's right.

40HIS HONOUR:  Everyone agree with that?

41MR HAYWOOD:  Yes.

42MR BARKER:  Yes, with the concurrency, yes.

43HIS HONOUR:  And I fix a new non-parole period of 28 months which, as I said, if you add two years, nine months and 12 days to 28 months will give you the total sentence before it becomes he eligible for parole.

44MR BARKER:  I agree with the math.  The only thing I can note is at the start of the sentence, Your Honour referred to a parole eligibility date that has existed before today.  Your Honour had the wrong date.

45HIS HONOUR:  Did I?  I was going on the documents in front of me. 

46MR BARKER:  So Your Honour, at the start referred to him being - having a release date of 2 March 2021.

47HIS HONOUR:  I obtained from the ‑ ‑ ‑

48MR BARKER:  That's correct, that day.

49HIS HONOUR:  ‑ ‑ ‑ the paragraph 16 of the Crown submissions.

50MR BARKER:  You agree?

51MR HAYWOOD:  No, I agree that the current - his current sentence is to lapse 2 March 2021.

52HIS HONOUR:  That's right, the head sentence and the current non-parole period on that sentence ‑ ‑ ‑

53MR BARKER:  And I just indicate - well, perhaps it's simplest to say this.  So Mr Haywood sent an email - no, I think I might have calculated it wrong or - on the - so I withdraw, Your Honour.

54HIS HONOUR:  I don't think it - doesn't matter in the full sum of things.

55MR HEYWOOD:  So for all intents and purposes, Mr Abdullah-Watts started serving his sentence on 2 November 2014.

56HIS HONOUR:  That's right, because of the long PSD. 

57MR BARKER:  I had the wrong month in my head when it was announced.

58HIS HONOUR:  Yes, that's all right.  No worry.  Are there any other orders I have to make?  Or you seek?

59MR HAYWOOD:  No, Your Honour.

60MR BARKER:  No, Your Honour.

61HIS HONOUR:  Mr Barker?

62MR BARKER:  No, Your Honour.

63HIS HONOUR:  All right.  You can take Mr Abdullah-Watts out, thank you.  Thank you, adjourn the court please.

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