Director of Public Prosecutions v Barnes

[2017] VCC 447

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01827

DIRECTOR OF PUBLIC PROSECUTIONS

v

TROY BARNES

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 April 2017
CASE MAY BE CITED AS:	DPP v Barnes
MEDIUM NEUTRAL CITATION:	[2017] VCC 447

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. G. Hayward	Office of Public Prosecutions
For the Accused	Mr. C. Farrington

Pages 1 - 1

 

 

1HER HONOUR:  Troy Sean Barnes, on Indictment G10114526 you have pleaded guilty to one charge of riot.  The maximum penalty for that offence is ten years imprisonment. 

2Further, on Indictment G10630700, you have pleaded guilty to six charges of theft, the maximum penalty for each offence is ten years imprisonment. In addition you pleaded guilty to two charges of obtaining by deception.  Again, the maximum penalty is ten years imprisonment in relation to each charge, and finally, you pleaded guilty to five charges of handling stolen goods, the maximum penalty for each offence is 15 years imprisonment.

3The circumstances of your offending as regards the riot matter are set out in the prosecution opening which was tendered upon your plea.  This is the agreed factual basis upon which you have pleaded to the charge.  In essence, you were, at relevant times, a remand prisoner at the Metropolitan Remand Centre (MRC) also known as Ravenhall. 

4The offending occurred on 30 June 2015 on which date, several hundred prisoners were involved in what has been described as “the largest riot in Victoria's correctional history”.

5The genesis of the riot was what can broadly be described as the no-smoking policy which was due to commence in all Victorian prisons on 1 July 2015.  There had been ongoing, but until this date, peaceful protest by prisoners in relation to the ban, who were seeking that it be suspended, amended, reversed or delayed. 

6As regards the riot globally, at 11.40 am on 30 June, about 120 prisoners congregated in Areas 1, 2 and 3, near the intersection of the three yards.  The prisoners were chanting the words, "We want Ox" which was a reference to a brand of cigarette tobacco. 

7Various prisoners began kicking, pushing and pulling on the fences separating the three yards, until the fences were breached and prisoners commenced moving through the holes in the fences.  A number of persons congregated on the Area 2 basketball court. 

8At this time, prison management directed all staff to withdraw from the yards and the majority of staff were evacuated to the gatehouse.  At about 12.15 pm, there were a number of prisoners congregated on the Area 3 basketball court, where a number of them began to use items of clothing to disguise their appearance before advancing on the Central Movement Control Centre, CMC, where they forced the door, gaining entry and damaging the interior.

9Following that, several of the prisoners made their way towards the Health Centre where the canteen is located and forced entry.  A number of prisoners also breached the southern door leading towards the gatehouse.  By this stage, a Code Grey had been called and police had been contacted.

10A number of prisoners involved in the riot had armed themselves with metal bars and other makeshift weapons, and advanced upon the gatehouse causing staff to withdraw inside.  Rocks were thrown at retreating prison officers.  After exiting the CMC, prisoners forced their way into the canteen which was looted.  A number of prisoners then walked back through the CMC and returned to Area 3, carrying the proceeds of looting from the canteen.

11

It was at this point that prison officers were able to return to the CMC and

re-secure the structure.  At about 12.41 pm, various prisoners realised this was occurring and a second attack was commenced in relation to that building, during which various items were thrown at prison staff, but the attack was repelled using tear gas.

12The majority of prisoners then withdrew to the Area 2 yard.  Following that, a number of accommodation and non-accommodation units were broken into using makeshift weapons to smash windows and damage fixtures and fittings.  This included at times disabling security cameras, the use of fire hoses to flood areas, burning of the inside and outside of various unit, together with the use of prison vehicles to cause damage to buildings and other structures. 

13At about 4.31 pm, the CMC was again attacked.  Rocks were thrown and vehicles were used to ram the gate.  The gate eventually gave way and prisoners ran into the building where they taunted and threatened prison officers who were separated by a fence.  Two vehicles were driven into the building.  Prison officers deployed tear gas and they were able to advance and re-take the building. 

14By 11 pm, the riot has essentially concluded.  Numerous prisoners surrendered and were taken into custody throughout the night.  The Department of Justice incurred some $12.1 million dollars in costs and $6.89 million dollars in repairs and maintenance at MRC. 

15Part B of the prosecution opening details your specific involvement, which can only be described as extensive. At 12.06 pm, you walked through the fence which had been breached from Area 1 to Area 2 and then further into Area 3. At 12.10 pm, you were part of a large group moving towards the CMC. Whilst walking to that area, you were assisted by co-offender Luca to cover your face and neck with material, possibly a T-shirt or jumper.

16At 12.23 pm when the CMC was breached after the gates were forced open, you were the 21st prisoner to enter and the fifth prisoner to walk to the canteen side of the building.  You, at some stage, picked up a table leg which you used to smash interior glass before dropping it to the ground. 

17At 12.27 pm, you ran from the CMC towards the canteen and entered.  You picked up objects from the ground outside the canteen and threw them over the fence towards prison staff at the gatehouse, and in Area 4.

18At 12.35 pm, you entered the canteen before exiting and walking back to the CMC.  You returned again to the canteen where you took a box of Coca-Cola and a pair of sunglasses, before returning to the path that led to Area 3, still holding the Coca-Cola and wearing the sunglasses.

19You were then part of a large group of prisoners who proceeded to throw objects towards staff before a meal cart was pushed into the CMC gates.  You were part of the group of prisoners who breached the Atwood Unit and from there you made your way to the Ballan Unit. 

20At about 1.36 pm, another prisoner forced entry into the Billingham Unit.  You were the 13th prisoner to follow him.  You were armed with an aluminium pole and you walked directly to a wall where you forced entry to a breathing apparatus (BA kit) using the pole.  You put it on before exiting.

21At 1.57 pm, you were seen in the Horticultural Centre, wearing the BA kit.  You sat in the driver's seat of a tug and after a number of failed attempts, started it and drove from Horticulture with co-offender Luca as your passenger.  You used the tug to ram the fence that divided Area 3 from the Recreation Centre.  Upon breaching the fence, you proceeded to ram the next fence that divided the race from Area 4.  You were assisted by other prisoners in another stolen tractor. 

22Prisoners broke through into Area 4 and forced their way to the Chartwell Unit where high-risk inmates were assisted to escape by removal of their cell doors. 

23At 3.09 pm, you were in Area 3, walking around a trailer that contained rocks.  You were still wearing the BA kit.  At some stage, you picked up and threw tear gas canisters back at prison staff.

24At 4.24 pm, you were seen driving a motorised buggy erratically around Area 3.  You assisted a co-offender to push another buggy into a large bonfire where it was immediately engulfed in flames and destroyed, before you commenced executing what are colloquially described as ‘donuts’ in the grassed area of Area 3.

25At 4.35 pm, the CMC was again breached.  You were the 39th prisoner to enter the breached building.  You were wearing a T-shirt covering your face and the BA kit was on your back.  Upon entry, you stood amongst other prisoners, kicking at the fence and yelling at prison staff before walking out of view. 

26At 4.37 pm, you exited the CMC after tear gas had been deployed.  As you left, you picked up some flexi-cuffs from the ground.  Soon after this, various prisoners began throwing objects at advancing staff.  Tear gas was again deployed.  You refitted your gas mask and threw several tear gas canisters back at staff.  You and others returned to Area 3.  Eventually the riot was subdued and prisoners were secured. 

27On 13 July 2015, you were conveyed to the Ballarat Police Station.  While you were being searched, you admitted that you were ‘heavily involved’ in the riots and that you were wearing a gas mask and throwing tear gas back at police.  In a recorded Arunta call made by you on 27 June, you describe the riots as "Grouse." 

28As regards offence seriousness, riot is by its nature a serious offence.  By your plea you admit that you and others were engaged in an assembly intending to assist each other in this case to cause fear, alarm and damage at MRC by the use of force if necessary. The level of threat, violence and damage is relevant to proper assessment of offence seriousness and that assessment is not to be made in relation to your own actions in isolation. 

29This riot occurred in the custodial setting, and there are strong public policy imperatives in maintaining order in such facilities.  General deterrence is properly given significant weight in the sentence I will impose this day.

30Globally, this was a serious example of the offence of riot having regard to the level of threat, violence and fear created, the scale of the destruction, the setting and the fact that you acted in the face of law enforcement personnel seeking to discharge their duties and functions. The duration of the riot is relevant, as is the number of persons involved, noting that you play a significant and ongoing role over several hours.

31I accept that you were not engaged in planning or organising the riot, nor were you directing others what to do, but you were, from an early stage, an enthusiastic participant. As I have noted previously, you were actively involved over about four and a half hours, you stole the prison tug vehicle, you were involved in the destruction of fences, you used the vehicle to push another vehicle into a bonfire, you were at some stages armed, you were at some stages disguised, you were using stolen breathing apparatus equipment to allow you to throw teargas canisters back at authorities who were trying to control the situation.  I note this occurred on several occasions.  You were involved in the second breach of the CMC when staff were taunted and intimidated.  In my view, you clearly intended to participate in the riot.  You were not simply a follower, you were intent on causing destruction and alarm.

32I have received 13 victim impact statements from various members of staff.  What is clear is that this offending had both acute and long-term effects upon many victims who variously described being terrified, traumatised, and frightened by all that occurred.  Many have sought professional assistance to deal with the psychological sequel.  Others have ongoing physical symptoms which have affected both their work and family lives.  Many of the victims continue to suffer flashbacks and have trouble sleeping.  The sequel to your offending has clearly been enduring.  It is to be hoped that time will assist the victims to return to their normal lives and routines.  We all have a right to work in our community without being subjected to this kind of disgraceful conduct.

33I now turn to Indictment G10630700, what have broadly been described as the ‘Ballarat matters’.  Charge 1 on this indictment is the charge of theft of motor vehicle which occurred on 15 January 2016 at which time you entered an unlocked garage and stole a red Opel sedan which had the keys in the ignition.

34Charge 2 is a charge of theft from motor vehicle which occurred on 10 February 2016.  You forced entry to a car at Mount Clear where you stole personal property including identification cards and credit cards. 

35Charge 3 is a further charge of theft of motor vehicle which occurred on 23 February 2016. You entered an unlocked vehicle in a driveway at Lake Wendouree and stole the motor vehicle using a spare key.  This vehicle was recovered on 28 February 2016 and your palm-print was located between the sunroof and the driver's side door.

36Charge 4 is a further charge of theft from motor vehicle which occurred on 22 February.  On that occasion, you stole a wallet from the victim's vehicle.

37Charge 5 is the charge of obtaining by deception, which occurred on 22 February when you used the stolen credit card to purchase unknown items at Coles Express to the value of $68.78.

38Charge 6 is a further charge of obtaining by deception.  It occurred ten minutes after Charge 5, at which time you attended at Woolworth's service station and again used a stolen credit card to purchase items valued at $83.49.  On that occasion you were captured on CCTV.

39Charge 7 is a further charge of theft of motor vehicle.  On 27 February 2016 you stole a vehicle from an address in Ballarat which had been left unlocked.  The victim observed the vehicle being driven away. 

40Charge 8 is a further charge of theft of motor vehicle.  On 29 February 2016 you attended an address in Nerrina where you entered a garage and stole a Holden Commodore. 

41Charges 9 to 13 are charges of handling stolen goods, each of the items handled was a number plate.  

42On 2 March, you were arrested and interviewed in relation to these matters.   You exercised your rights not to answer questions. 

43As regards this offending, in my view it is concerning that this offending occurred within a few weeks of your release from custody and in the context of an almost immediate return to drug-use.  You were, at the relevant time, subject to a Community Correction Order and on summons in relation to the riot matter to which you have pleaded. This emphasises the need for specific deterrence and also I think the difficult road you likely face in terms of rehabilitation. 

44As regards your criminal history, you admitted the contents of a criminal record which discloses a history of appearances before the criminal courts dating back to 2008 at the Ballarat Children's Court.  You have numerous prior convictions for matters of dishonesty and what could broadly be described as road traffic offences. 

45Various dispositions were imposed in the Children's Court but you nevertheless continued to offend.  On 8 March 2012, you first appeared in the Magistrates' Court at Ballarat in relation to a charge of unlawful assault.  On that occasion you were convicted and fined. 

46The following month you appeared in relation to another charge of unlawful assault which was adjourned on an undertaking providing that you must participate in a Men's Behaviour Change program. 

47On 24 May 2012, you appeared at the Ballarat Magistrates' Court where you were convicted of charges of burglary, theft, intentionally damaging property and weapons offences.  On that occasion, you were placed on a Community Correction Order.  You breached that order and ultimately served three months Youth detention. 

48On 16 January 2013, in addition to the breach matter, you were sentenced to three months detention in relation to dishonesty and firearm offences.  On 27  August 2013, again at the Ballarat Magistrates' Court, you were convicted of numerous charges including aggravated burglary, burglary and associated dishonesty offending.  You were sentenced to be imprisoned for 12 months with a three month non-parole period.

49In October 2013 you were sentenced to a further month cumulative upon the sentence in relation to the further matters of dishonesty.  At the time of this offending you were on remand in relation to matters which saw you sentenced in the Magistrates' Court at Ballarat on 13 July 2015, some two weeks subsequent to the riot.

50You were not charged with the riot however, until December of that year.  You were originally charged by way of summons.  You failed to appear in relation to that matter and a warrant was issued.  The warrant was executed when you were arrested in relation to what have been described as the Ballarat matters, on 2 March of 2016.  You have been in custody since that date. 

51

Relevant to the Ballarat matters, you have now served 406 days by way of

pre-sentence detention. 

52As regards your personal history, you are now aged 24, having been born in Ballarat on 1 September 1992.  You were 22 at the date of the riot.  Your parents separated when you were an infant and you have largely been raised by your mother. 

53It seems that your childhood was marred by illicit drug use, initially by your parents, but from a very early stage by you.  It seems that you were unfortunately the subject of abuse at the hands of your mother's new partner.  You told Mr Cummins that by age 12 or 13, you had already been detained in Youth Justice because you were "Uncontrollable."  By that stage, you had already been prescribed Dexamphetamine having been diagnosed with ADHD and a conduct disorder.

54As regards your education, you attended Canadian Lead Primary School through to Grade 5, but you report that by age 10 or 11 you had ceased attending school and it seems that once you entered the Youth Justice system your schooling really ceased.  You describe yourself as reading "Okay" but describe your writing and spelling as "Down."  The reality is you are functionally illiterate.

55It was apparently at school that you were first diagnosed with ADHD, OCD, and a conduct disorder.  You report seeing a paediatrician in Geelong when you were about 12 and being prescribed the Dexamphetamine which it seems your mother used intravenously to feed her own addiction issues.  I accept and it was not disputed by the prosecution, that your young life was marred by deprivation and disadvantage.  You had little or no guidance and support.  You were exposed to both violence and drugs in your formative years and those deficits have damaged your life, and I accept to some extent assessment of your moral culpability.

56As regards employment, you have had nothing but minimal casual labouring and no real work history.  You have been in receipt of a Disability Pension, it seems, since you were a teenager.  You have an ongoing relationship with your mother who lives in Ballarat, but limited contact with your father who unfortunately suffered a serious acquired brain injury when you were about 14. 

57You have one full brother and three half-brothers.  You have only ever had one ongoing relationship with your now-ex girlfriend who visits in custody and attended court upon your plea.  She brings your now-infant daughter to see you.  It seems this provides at least some incentive to address your own rehabilitation as it has apparently been made clear to you that any resumption of drug use or criminality will see your relationship with your daughter terminated.

58As regards your drug history, you report being a heavy smoker of cannabis between the ages of 13 and 18, at which time you increased your use and at the same time, commenced using meth-amphetamine which you at first smoked but later injected.  I have been told that you were injecting by age 20. It seems that you were throughout these years, in addition, a frequent abuser of prescription medication.  You have experimented with cocaine and LSD on a number of occasions.  Between the ages of 22 and the date of your arrest in March of 2016, you report being a frequent user of GHB.  You have never undergone any extended residential drug rehabilitation but you instruct you would now be willing to "Give it a try."  The reality is that your resolve in this regard remains to be tested. 

59As previously noted you had been released from prison in December of 2015, and report that within a week you were back using ice at approximately one gram a day.  In addition, you were abusing alcohol and Xanax.  It was against this background that the Ballarat offending took place.

60As regards your physical health, I note that you have contacted Hepatitis C as a result of, it seems, your intravenous drug use.  I received a report from Mr  Geoffrey Cummins dated 6 September 2016.  Mr Cummins opines that you do not present as being psychotic or schizophrenic.  He says you presented being as normal although below average intelligence.  It was his opinion that you are probably functioning at the lower end of the below-average range.  He also noted that you presented as mildly depressed.  He says you realise that you were having difficulty remaining drug-free and it was Mr Cummins's opinion that you were at risk of developing a borderline personality disorder.

61Mr Cummins, at that time, recommended assessment by a neuro-psychologist so the extent of your learning difficulties could be determined.  He suggested at the time of his assessment that your prognosis was quite guarded. 

62Subsequent to the last hearing date, you were assessed by Dr Borg, the neuro-psychologist, and her report is dated 29 March of 2017.  Dr Borg concluded that you were likely in the low average range of intelligence.  She notes that you have a developmental learning disorder and ADHD. 

63Dr Borg opined that you have difficulty in appreciating the consequences, both positive and negative, of your actions.  She says you are more likely to be driven by immediate impulses, needs or emotional states, rather than rational thought.  It is not put upon your plea that any element of Verdin's is engaged, but these matters provide context, which is, of itself, relevant.

64I take into account in sentencing, your plea of guilty and the stage in proceedings at which you indicated an intention to plead guilty which is conceded by the prosecution to be an early-stage as regards the riot. 

65Relevant to the Ballarat matter, I accept that it was entered subsequent to negotiation and should, in my view, be treated as an early plea.

66You are to be sentenced on the basis that you have saved the community the time and expense of potentially two trials.  I am prepared to act on the basis that your plea demonstrates some remorse.  The recorded Arunta call makes clear that remorse was not immediate as regards the riot. 

67Very significantly, you remain a youthful offender.  As I noted, you were 22 as at the date of the riot.  You fall to be sentenced aged 24.  While it is true that proper weight to be afforded to your youth is diminished as a result of your history, the community must, in my view, nevertheless maintain a real interest in your rehabilitation as that is not only in your interest, but those of the community.  The reality is that you will be released into the community and your rehabilitation is the community's best protection.

68Unfortunately, I think at this time, that your prospects of rehabilitation are at best guarded, and unless and until you deal with the drug addiction which had underpinned your offending whilst in the community, in my view, the risk remains significant.

69Both general and specific deterrence must be given significant weight in the sentence I will impose this day.  I must seek to deter not only you but others who would engage in like-conduct.  The court and the community cannot tolerate this type of offending.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.

70Principles of totality and parity must be given weight in the sentence I will impose this day.  While principles of parity are clear in their warrant, their application in this matter is complex, given the number of offenders, the fact that only a small number have thus far been sentenced, out of a potential cohort in excess of a hundred, and the differing circumstances of offenders as regards their custodial status, availability of concurrency, whether the sentence will require them to require them to return to custody, and of course, matters personal to each offender.  Totality must be given weight in your case, and I have acted on that basis. 

71On Indictment G10114526, on the charge of riot, you are convicted and sentenced to be imprisoned for three years. 

72On Indictment G10630700, you are convicted and sentenced as follows:

73Charge 1, Theft, six months base sentence.

74Charge 2, Theft, two months, one cumulative.

75Charge 3, Theft, six months, three cumulative. 

76Charge 4, Theft, two months, one cumulative.

77Charge 5, one month.

78Charge 6, one month.

79Charge 7, six months, three cumulative.

80Charge 8, Theft, six months, three cumulative.

81Charge 9, Handling stolen goods, one month.

82Charge 10, Handling stolen goods, one month.

83Charge 11, Handling stolen goods, one month.

84Charge 12, Handling stolen goods, one month.

85Charge 13, Handling stolen goods, one month.

86That is a total sentence on this indictment, of 17 months.

87I direct that ten months of the sentence on this indictment be served cumulatively with the sentence on Indictment G10114526.  On both Indictments, that is a total effective sentence of three years and 10 months.

88I direct that you serve two years before becoming eligible for parole.  I direct that 406 days be reckoned as served.  I direct it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to a total effective sentence of five years with a minimum of three years and three months across both indictments.

89Just have a seat.  Counsel check the cumulations please on the indictment which has internal cumulations.

90MR HAYWARD:  They do add up to 17 months Your Honour.

91HER HONOUR:  Thank you.

92MR HAYWARD:  Your Honour, I take it the order of the court would be those orders for cumulation would be upon the base of Charge 1, and upon each other.

93HER HONOUR:  Yes.   Yes.

94MR HAYWARD:  Yes.

95HER HONOUR:  So that is how they reach 17 months, yes.  I will just check and make sure Mr Farrington thinks the maths is right.

96MR FARRINGTON:  The maths is correct.

97HER HONOUR:  Very well.  Thank you.  Counsel, is there any factual matter which needs to be corrected?

98MR HAYWARD:  No, Your Honour.

99MR FARRINGTON:  No, Your Honour.

100HER HONOUR:  No.  Thank you very much.  Very well.  Mr Barnes can go downstairs please.  I thank counsel for their assistance.  Adjourn the court. 

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