Director of Public Prosecutions v Bright

[2017] VCC 251

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-02029

DIRECTOR OF PUBLIC PROSECUTIONS

v

LACHLAN BRIGHT

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2017
DATE OF SENTENCE:	14 March 2017
CASE MAY BE CITED AS:	DPP v Bright
MEDIUM NEUTRAL CITATION:	[2017] VCC 251

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Mr P. Raimondo	OPP
For the Accused	Mr S. Andrianakis	Haines & Polites

HIS HONOUR:

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

2       On 24 October 2016, His Honour Chief Judge Kidd 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.  He said this:

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. 

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 Central Movement Control, 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.

In all, 102 offenders have been charged in relation to the riot.

3       I now turn to your specific role as outlined in Part B of the Prosecution Opening.  Your actions were captured on CCTV footage and I make the following points about your offending:

·    Your actions span the period 12.07 pm to 4.38 pm.  At 11.45 am you were with a group of prisoners who gathered at the junction of areas one, two and three.

·    After midday, the fences that divided these areas were breached and you were part of a group of prisoners who walked towards the CMC.

·    The CMC was breached and you walked through the building and left through another forced gate near the canteen.

·    You entered the canteen and stole items.  You were seen wearing stolen sunglasses.

·    You congregated with a group of prisoners in the area three yard.  You were armed with a pole.

·    At 12.54 pm you were with a group of prisoners who forced entry into the Ballan Unit by smashing through the glass doors and windows.  It is not alleged that you smashed any items.  Once inside the unit you kicked at the officer’s post.

·    At 3.10 pm you were with a group of prisoners in the area three yard who were breaking up rocks in a trailer that had been removed from the horticultural area.  The rocks were being broken up in readiness for throwing at prison officers. You were with prisoners who took the trailer into the area one yard.  You were armed with a short pole or torch.  The prison officers used tear gas to disperse the group and you ran back to area three.

·    At 4:33 pm prisoners attacked the CMC a second time.  A motorised buggy was used to ram the gates and gain entry.  Prison staff had to evacuate the area.  After the CMC had been breached you were part of a large group of prisoners that advanced towards the CMC.  Prison staff deployed tear gas.  You were observed throwing solid items at the prison staff manning the CMC gates.

·    You were interviewed by the police on 15 October 2015.  You made a no comment interview.

4       I have been provided with 14 victim impact statements.  The victims are prison officers at the MRC.  In his remarks in the case of Luca, the Chief Judge summarised the impact of the riot on the victims in a way that is consistent with what I have read.  After noting that the riot had a major impact on these officers he went on to say:

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 these injuries directly.  It has affected the way that they now interact with the prisoners on a day-to-day basis.

5       His Honour also detailed the legal principles that attach to the offence of riot.  I adopt his comments, they are as follows:

·    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.

6       In light of these principles enunciated, I adopt the Chief Judge’s assessment of the gravity of the overall riot:

·    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.

·    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."

7       I now speak more specifically about your role in the offending.  I accept that you were not one of those involved in the planning or organising of the riot.  In addition, your contribution was confined to the acts and period of time I have identified.

8       However, I find that while you did not play the role of a ringleader, you did play a significant role.  You were with the group of prisoners who gathered at 11.45 am at the junction of areas one, two and three.  The riot gained momentum from this time.  Your involvement continued for nearly four and a half hours.  Your actions included looting the canteen and entering the Ballan Unit.  Later you were involved in the breaking up of rocks and the movement of the trailer containing those rocks into the area one yard.  When the CMC was attacked for a second time, you threw solid items at prison staff.  This behaviour, directed as it was against officers who were endeavouring to restore order, is a particularly serious aspect of your offending.

9       You have a criminal history.  It commences with an appearance in the Children’s Court in 2013.  In November 2013 you were sentenced in the Magistrates’ Court to a 12 month community corrections order for offences of burglary and theft.

10      There are subsequent matters that are relevant to an understanding of your personal circumstances.  On 19 January 2014 you were remanded in custody on offences of false imprisonment, intentionally cause injury and theft.  This explains why you were on remand at the time of the riot.  These offences were finalised by way of a guilty plea in the County Court on 17 December 2015 and you were sentenced to imprisonment, time served, and a 12 month CCO.

11      In July 2016, you were remanded for further offending and on 2 August 2016 you were remanded in custody for the present offence.

12      On 3 March 2017, you were sentenced in the County Court for breaching the community corrections order and you were sentenced to a total effective term of six months and 14 days.

13      This history means that specific deterrence and protection of the community are relevant sentencing considerations.

14      You are 21 years old.  You were 20 years old at the time of the riot.

15      Your counsel submitted that you came from a chaotic and disadvantaged background.  I agree with that submission.  Your father left the family when you were two or three years old.  You stayed with your mother in an unsettled home environment.  There was no stable accommodation and you moved regularly.  You had two periods where you went to live with your father.  Neither were successful.  Your schooling was disrupted.  You estimate that you attended seven different primary schools.  You were badly behaved in secondary school.  You did not complete year nine.  You endeavoured to work but struggled to support yourself financially.  You started to use drugs in year eight and inevitably you became more heavily involved in the drug scene.  By the age of 17, you were heavily addicted to ice and your offending commences.  The hardship you suffered as a child is a matter that mitigates sentence in a general way.

16      There are other matters in mitigation:

17      You are a youthful offender.  Your youth is an important consideration and requires me to give appropriate weight to your rehabilitation.  However, the weight to be given to that principle is diminished to some extent because of your criminal history and the seriousness of this offending.

18      I am guarded about your prospects of rehabilitation.  You were given a community corrections order in November 2013 and you breached that order by committing offences in January 2014.  The community corrections order imposed in this court in December 2015 was breached by subsequent offending.  Drugs have been a real problem for you and unless you can break your addiction you will continue to offend.  Your counsel submitted that you have now developed some insight into your substance abuse and the problems this has caused you.  It is to your credit that you have completed two courses relating to substance abuse and relapse prevention whilst in prison.   

19      You entered an early plea of guilty.  I accept that your plea is indicative of remorse.  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.

20      After the riot you were held for a number of months in 22 or 23-hour lockdown.  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.”

21      Parity is a relevant matter.  There are a large number of prisoners charged with this offence.  So far, very few have been dealt with.  I have already referred to the finalised case of Luca.  The prosecution submitted that notwithstanding the differences in the specific actions of you and Luca, an overall assessment of your respective behaviours would enable me to conclude that you were comparable offenders.  It is not easy to draw an exact equivalence between each offender’s behaviour.  Luca was an enthusiastic participant who actively caused damage, armed himself, encouraged others and drove a “tug” vehicle.  However, his involvement was over a shorter period than yours and he did not break up rocks or throw items at Prison staff.  On balance, your culpability can be said to be at a similar level to his.  An important similarity is your age at the time of the offending.  Whilst there are some differences in your personal circumstances they are not such as to warrant a significant differentiation in sentence between the two of you.

22      In determining your sentence I must also take into account the sentence that you received on 3 March 2017.  I must apply the principle of totality to ensure that the total sentence you are to undergo is just and appropriate.

23      Will you stand please?

24      You are sentenced to two years' and five months' imprisonment.  I fix a minimum term of 17 months before you will be eligible for release on parole.  I declare 213 days pre-sentence detention.  This sentence is partly concurrent on the sentence that you are currently undergoing.  The concurrent portion is three months.

25      Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to four years with a minimum term of two years and nine months.  

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