Director of Public Prosecutions v Benrabah
[2018] VCC 744
•24 May 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-00570
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRAHIM BENRABAH |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 April 2018 |
| DATE OF SENTENCE: | 24 May 2018 |
| CASE MAY BE CITED AS: | DPP v Benrabah |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 744 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr K. Gilligan with Mr G. Heywood | OPP |
| For the Accused | Mr N. Rudston | Emma Turnbull Lawyers |
HIS HONOUR:
1 Brahim Benrabah, you have pleaded guilty to one charge of riot. The maximum penalty for this offence is ten years’ imprisonment.
2 On 24 October 2016, the Chief Judge of this court sentenced a co-offender, Johnathon Luca, for the offence of riot. I adopt the remarks His Honour made regarding the overview of the events that occurred on 30 June 2015.
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 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.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.
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 CMC 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 repairs and maintenance of the MRC.
3 I make the following points about your participation in the riot:
· Your actions spanned the period from about 11.57 am to 4.30 pm.
· At 11.57 am, you were with a group of prisoners in the Area 3 yard.
·
After midday, some of the prisoners breached the fence between
Areas 2 and 3. You moved through to Area 2 were you hugged another prisoner and made come over here gestures. You joined other prisoners on the basketball court and moved with them back to Area 3. After midday, the group moved towards the CMC. At 12.16 pm, you were photographed with those prisoners who had gathered outside the CMC.
· Prisoners began to attack the gates leading into the CMC. Because of the number of prisoners involved in this attack, the prison officers left the CMC and made their way to the Gatehouse. The gates were breached and you were the second prisoner to enter the building. You were armed with a pole.
· You were actively involved in causing damage in the CMC. You kicked a cabinet containing a breathing apparatus. You used your jumper to attempt to cover your face. You then picked up a chair and threw it at an internal window. You used a pole to strike an internal window several times before making your way through the CMC and going to the gate leading to the canteen. The prisoners forced their way into the canteen. The canteen was looted. You were one of the prisoners involved in taking items from the canteen.
· You joined other prisoners who made their way back through the CMC to the Area 3 yard. You were wearing sunglasses and carrying another item taken from the canteen. You were also carrying a pole.
· Prison officers re-secured the CMC. You joined a group of prisoners who went back to the CMC and launched a further attack on the building. You threw objects at the building and waved to other prisoners to join the attack. At about 12.44 pm, members of the SESG deployed tear gas to drive the prisoners back to Area 2.
· At 12.55 pm, you were seen with other prisoners standing on the basketball court in Area 2. You moved with them to Area 1.
· At about 1 pm, the Attwood Unit was breached and you ran towards the unit and entered it. You were present when the prisoners ransacked the officer’s post and caused damage. You used a pole to strike at electrical equipment and a tabletop. You tipped over a filing cabinet and kicked at a door. You left the unit and walked back to Area 1.
· At 2 pm, prisoners had managed to start prison vehicles, which they drove towards the fences separating Areas 3 and 4. You and other prisoners watched as the prisoner on a tractor repeatedly rammed the fences with the tractor. You walked beside him and clapped your hands as the driver rammed the fence.
· The tractor destroyed a section of fencing and you and other prisoners walked through the breached fence. The tractor smashed the front doors of the Chartwell Unit and you joined other prisoners in entering that unit. You tried to disguise yourself. A little later, you are seen using a fire hose to spray water into the Area 4 yard.
· At 4.25 pm, you are seen with other prisoners in the Area 3 yard. Five minutes later, you all advanced on the CMC and again attacked that building. Objects were hurled at the building and the officers used tear gas to disperse the mob. A prison buggy was driven towards the CMC gates and rammed into them. Prisoners helped repeatedly push the buggy into the gates. You were standing next to the buggy and pointing to the gates. The gates were forced open and you raised your arms in triumph. You were one of the first prisoners to enter the building. You walked towards the gate and then to the canteen and, with another prisoner, attempted to open the gate. A group of prisoners tried to breach the barrier between the CMC and the Gatehouse. You stood with them and watched them in their efforts. The buggy was again used to try to breach a gate leading to the Gatehouse. The officers deployed tear gas and forced all of you to retreat.
· You are not seen again until about 11.53 pm. At this time, you were in the custody of the police.
4 In the case of Luca that I have already referred to, the Chief Judge detailed the legal principles that attach to the offence of riot. I adopt his comments.
·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;
·The offence of riot is more serious where the rioters act against law enforcement officers in the execution of their duties;
·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.
5 It is not disputed that this riot was a serious example of such an offence. It involved a large number of prisoners, it persisted over many hours, it caused millions of dollars' worth of damage, it was a vigorous attack on the proper operation of the prison, law enforcement officers were confronted and had items thrown at them and it generated a high level of fear and alarm.
6 I have read the victim impact statements. The riot had a major impact on those people working at the prison. Several have suffered from sleeplessness and flashbacks. Work relationships and family relationships have been adversely affected. Many no longer feel safe in their workplace. In short, the psychological impact on the lives of these officers has been considerable.
7 I now move to an analysis of your specific role in the offending. I accept that you were not one of those involved in the planning or organizing of the riot. Whilst you did not play the role of a ringleader or organiser, you did participate over a period of 4 and ½ hours. As I have said, you were with the group of prisoners who gathered before midday at the junction of Areas 1, 2 and 3. When the fence between Areas 3 and Area 2 was breached, you walked through and entered Area 2. You were with the group of prisoners who walked to the CMC and forced their way into that facility. The riot gained momentum from this time. You were the second prisoner to enter once the gates were breached. You caused damage in the CMC and you stole items from the canteen. Later, you entered the Attwood Unit and caused damage there. You entered the Chartwell Unit and sprayed water into the yard. You were involved in the second breach of the CMC at 4.30 pm. In summary, you were an active and enthusiastic participant in the riot.
8 I now move to your personal circumstances.
9 You are 50 years old. You were born in Algeria. You were the fifth of 11 children. You grew up on the family farm in the small town of Boumazza. You were educated to Year 11 and then commenced work in a coffee shop for a year and a half. You undertook compulsory military service for two years.
10 You left Algeria in 1996. You left after witnessing a massacre in your hometown. You were fearful of persecution after disclosing to others your belief that the massacre was carried out by representatives of the government. You had a long and arduous trip to Australia. You arrived here in 1997 and spent a year in immigration detention. Upon release from detention, you were prohibited from working for 12 months. During this time, you experienced destitution and homelessness.
11 In 1999, you commenced a de facto relationship with an Australian citizen. You have a daughter from that relationship who will turn 18 in July this year. Your partner and daughter have written references for you.
12 In 1999, you were granted a protection visa and you commenced working. Initially, you worked in a bread factory and then a furniture factory. In 2001, you were working in a warehouse in Port Melbourne when you suffered a serious back injury. In 2002, you were granted a disability support pension. Your counsel told me that you commenced using methylamphetamine in 2002 because of the chronic back pain you were experiencing. You have been addicted to drugs since this time. The addiction has ruined your life.
13 You have a significant criminal history. It commences in 2004 with an appearance at the Melbourne Magistrates’ Court for burglary, theft, aggravated burglary (with a person present) and car theft. You were placed on an intensive corrections order. You have been a regular and persistent offender ever since. Nearly all of your prior appearances have been in the Magistrates’ Court and they have predominantly related to dishonesty matters or drug matters. However, you do have one prior appearance in this court in 2005, when you were sentenced on a large number of dishonesty matters, to 30 months imprisonment with 21 months suspended for a period of 30 months.
14 Over the years, you have had community-based orders, intensive corrections orders and suspended sentences. Many of these orders were designed to try to facilitate your rehabilitation. Invariably, the orders have been breached. You have been unable to stop your drug use or to stop your offending. This is even though your partner and daughter continued to support you. A warning from Immigration in 2006 did not stop your offending.
15 This history explains why I am extremely guarded about your prospects for rehabilitation. You have a significant drug problem and you have been unable to break the cycle of drug abuse and offending. Supports within the community have not been effective. Having made this assessment of your prospects, I am bound to concede that the assessment is almost certainly academic. This is because it is highly likely that you will be deported upon the completion of your sentence. This is a matter that I will speak about in more detail shortly. However, before doing so, I need to outline the history of your recent time in custody. The history is relevant to the application of the totality principle, which is a relevant matter in your case.
16 On 21 June 2015, nine days prior to the riot, you were remanded in custody for various criminal offences. Those matters were dealt with in the Magistrates’ Court on 9 October 2015. You were sentenced to a total effective sentence of nine months’ imprisonment (with 110 days pre-sentence detention).
17 On 24 December 2015, you were charged with the current offence of riot on summons.
18 On 22 February 2016, the relevant Commonwealth authority cancelled your protection visa.
19
When the sentence imposed in October 2015 expired on 20 March 2016, you were placed in immigration detention. This apparently occurred even though you had outstanding unresolved matters in the Magistrates’ Court. You remained in in immigration detention until you were returned to prison on
30 June 2016. This return related to the outstanding charges that I have just referred to. Those charges were heard in the Magistrates’ Court on 11 July 2016. The period you spent in immigration detention has not been taken into account by any court and is best described as “dead time”. I intend to make an appropriate adjustment to your sentence to acknowledge that period.
20 On 11 July 2016, you appeared in the Magistrates’ Court and you were sentenced to ten months’ imprisonment (with 14 days pre-sentence detention).
21 On 22 March 2017, you were committed for trial on the charge of riot and you were remanded in custody.
22 On 26 April 2017, the sentence imposed on 11 July 2016 expired. You have been on remand for the current offence since that time. This is a total of 392 days. However, you have effectively been in custody now for over 35 months and although some of that time relates to sentences imposed by various Magistrates’ Court, it is necessary for me to take these periods into account under the principle of totality. In addition, as far as the two Magistrates’ Court sentences are concerned, I must make some allowance for the fact that you have lost the opportunity for some concurrency between those sentences and the sentence that I am about to impose for the riot.
23 I now return to the issue of your likely deportation. I have already referred to the cancellation of your visa on 22 February 2016. A delegate of the relevant Minister upheld this decision on 29 November 2016. You appealed the delegate’s decision. On 26 February 2018, a senior member of the Administrative Appeals Tribunal affirmed the decision to revoke your visa. This means that there is a real likelihood that you will be deported at the end of your sentence. In these circumstances, I take into account the fact that the burden of imprisonment will be greater for you than it would be for someone who did not face the prospect of deportation. I also take into account the hardship that would flow from you losing the opportunity of settling permanently in Australia. In this regard, it is significant that you have not lived in Algeria since you were 29 years old; that you have lived in Australia for 21 years; and that your partner and child reside in Australia. Your sentence will be moderated for these reasons.
24 You have entered a plea of guilty. It came late in the process. Even so, the plea must be recognised as an acknowledgement by you of responsibility for your behaviour. It also has utilitarian benefit. No witnesses have been required to give evidence and your plea has saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.
25 After the riot, there was a period when prisoners were held in lockdown as security was reviewed and the damage to the prison addressed. This means that you experienced hardship that was not experienced by all prisoners. However, as the Chief Judge said in the case of Luca – “the benefit here 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. The credit or benefit you get for this is a question of degree.”
26 On 21 July, you were transferred to Port Phillip Prison. After the electrical fire on 29 November 2017, your out of cell hours were significantly reduced from that date until 20 December 2017. However, the hardship suffered during that period is moderated by the fact that you are likely to receive management days under s.58E of the Corrections Act 1986.
27 Parity is a relevant matter. In dealing with this issue, I must make due allowance for the respective criminality of each offender and I must make due allowance for their differing antecedents, personal circumstances and mitigating circumstances. The prosecutor referred me to the cases of Luca, Barnes, Kelly and Dodd. He noted that in terms of the objective gravity of your offending, you are in a similar position to Luca. Your actions were said to be similar to, but less serious than Barnes. Your actions were significantly less serious than Kelly or Dodd. This analysis is correct. However, it is just one part of the analysis. It is also necessary to make the appropriate adjustments for personal circumstances. For example, in the case of Luca, he was a young offender with no prior convictions. He entered an early plea of guilty and his prospects of rehabilitation were stronger than yours. These were matters of benefit to him that are lacking in your case. On the other hand, he did get the benefit of some concurrency with a sentence he was already serving. Also, the application of the principle of totality, the associated dead time whilst you were in immigration detention and the likely prospect of deportation are important matters that impact on your sentence.
28 Mr Benrabah, please stand.
29 On the offence of riot, you are sentenced to 22 months' imprisonment. I fix a minimum term of 14 months before you will be eligible for release on parole. I declare 392 days pre-sentence detention.
30 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of three years and three months' imprisonment with a minimum term of two years and three months.
31 You can be seated there for a moment.
32 MR HAYWARD: One thing that troubles me, Your Honour is that Your Honour referred to and are not being made for the fact that there was the fire in Port Phillip Prison and consequently, there was a lack of cell time.
33 HIS HONOUR: Yes.
34 MR HAYWARD: And Your Honour remarked that. However, the benefit that could flow from that has to be moderated from the fact that Corrections will provide deductions from his sentence.
35 HIS HONOUR: Well that was in the affidavit that was provided by the prosecution.
36 MR HAYWARD: And I am sure that is their intention. However, my submission is that strictly speaking, Your Honour cannot take into account that potential future executive action.
37 HIS HONOUR: Well I understand that. But the difficulty is, having been given an affidavit that referred to the circumstances of his imprisonment, if his out of cell hours have been significantly reduced, then it is something that I either take into account or do not take into account. And if the authorities say that we propose to address it by taking specific administrative action, don't I have to mention that?
38 MR HAYWARD: The difficulty is that that may well be their intention. But that is a possible future executive action and I say, as technical as I am being, the court ought not to take that into account. My submission has actually has a benefit to Mr Benrabah because if in the event that they were not to provide him with that time off, the allowance for that would have more weight for the court.
39 HIS HONOUR: What is the purpose of giving us the affidavit disclosing that information?
40 MR HAYWARD: Well the affidavit was really more as to actual time spent in lockdown and the conditions of lockdown. That is the primary purpose for (indistinct).
41 HIS HONOUR: Well if that is the case, then I should not have been given information that you now tell me is of no relevance or significance.
42 MR HAYWARD: Well I can see that that should have been given more thought.
43 HIS HONOUR: Well as I reflect on this, it is not a matter that is going to impact on the sentence that I have imposed and so I do not intend to moderate or try and change or alter my sentence in anyway.
44 MR HAYWARD: May it please the court.
45 HIS HONOUR: Do you want to be heard on this, Mr Rudston?
46
MR RUDSTON: Your Honour, I do not carry my learned friend's submissions, although I hear Your Honour has already reached a settled conclusion that I do adopt them. Your Honour, as I understand this, this may be again a technicality since Your Honour has clearly taken it into account. I am given to understand there is now a single judge decision within the last year or so from this court whereby immigration detention has been treated directly for the award of PSD rather than under the Renzella principle. I draw that to Your Honour's attention and invite Your Honour to consider it, although I do understand that
Your Honour has, in Your Honour's own way, taken it into account.
47 HIS HONOUR: Well it just seemed to me to be dead time in accordance with Renzella.
48 MR RUDSTON: Your Honour, it - - -
49 HIS HONOUR: Mind you, if another judge had taken a different view, then that judge has obviously given the matter detailed consideration also.
50 MR RUDSTON: Your Honour, respectfully, it must seem that if Your Honour's done it on a day for day basis, then of course, the results are the same and there can, in reality, be no very real complaint. If Your Honour had taken and done it on a less than day to day basis, then I would invite Your Honour to perhaps consider following that course, which now seems to be a practice of this course, day for day.
51 Your Honour, just before I forgot, on a housekeeping matter, whether it might be appropriate. Your Honour understands that we are obliged under the rules that govern Victoria Legal Aid instructions. However, it is not the defendant's fault, the accused's fault and counsel attends on his behalf. But the hearing is ineffective. Then there is a standing instruction, rightly or wrongly, we apply for a costs certificate.
52 HIS HONOUR: You would be entitled to an appeals cost funds certificate, Mr Rudston.
53 MR RUDSTON: Your Honour that is 3 May.
54 HIS HONOUR: Because I listed the matter for sentence on an earlier date. I was unwell. I hoped I might be able to sentence on the following day and I was still unwell, and so I think it was listed twice.
55 MR RUDSTON: Your Honour, yes.
56 HIS HONOUR: A Wednesday morning and the Thursday, perhaps in the afternoon. So I would certainly allow appeal cost funds certificates for your appearance on both those occasions.
57
MR RUDSTON: Your Honour, I am grateful. I am sure it is recognised by all parties that the way the listing occurred was very obviously an attempt by
Your Honour to sentence even when perhaps that was going to be a difficulty for Your Honour and that is recognised and it is appreciated, Your Honour.
58 HIS HONOUR: Thanks, Mr Rudston.
59 MR RUDSTON: Thank you.
60 HIS HONOUR: Yes, perhaps just to be clear. When I spoke about making an appropriate adjustment, what I was indicating was that I had made a reduction of the head sentence and the non-parole period to reflect the time that he had done in immigration detention.
61 MR RUDSTON: Thank you, Your Honour. That is of assistance.
62 HIS HONOUR: Yes. Thank you both. Mr Benrabah can be removed, thank you.
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