Director of Public Prosecutions v Davis
[2017] VCC 747
•8 June 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-02276
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES DAVIS |
---
| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 March 2017 |
| DATE OF SENTENCE: | 8 June 2017 |
| CASE MAY BE CITED AS: | DPP v Davis |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 747 |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr S Ballek | OPP |
| For the Accused | Mr D Gray | Mike Wardell |
HIS HONOUR:
1 James Davis, you have pleaded guilty to one charge of riot. The maximum penalty for this offence is ten years' imprisonment.
2 You have also pleaded guilty to one related summary charge of fail to answer bail. The maximum penalty for this offence is two years' imprisonment.
3 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.
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 11pm.
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.
4 I make the following points about your specific role in the riot.
· Your actions span the period 11.51am to 4.38pm.
· After midday, fences dividing areas 1, 2 and 3 were breached and you were part of a group of prisoners who walked towards the CMC. You were at the rear of the crowd. You followed the crowd through the gates of the CMC and tied a windcheater around you head to disguise yourself.
· At some stage, you entered the canteen.
· You walked back through the CMC and into the Area 3 yard, carrying sunglasses that were obviously stolen from the canteen.
· At approximately 12.49 pm prisoners forced their way into the Ballan Unit and caused significant damage to the interior. You can be seen entering the Ballan Unit at this time, still disguised.
· You walked around various yards and at 1.26 pm again entered the Ballan Unit.
· At approximately 1.36 pm, prisoners forced their way into the Billingham Unit and caused significant damage to the interior. You can be seen entering the Billingham Unit at this time, with a T-shirt tied around your face. You watched other prisoners damage the unit.
· On your own admission you encouraged others to remove cell doors. On 24 July 2015, a phone conversation was recorded where you said that you assisted other prisoners to remove the doors because you had experience using Allen keys.
· At approximately 4.19 pm you temporarily got onto the back of the Kubota tractor being driven by another prisoner. You jumped off as it drove away.
· At various times you were seen walking through various fences between the yards and units.
· At approximately 4.36 pm, numerous prisoners approached the CMC. You walked with this group and can be seen carrying a pole given to you by another prisoner.
· At approximately 4.38 pm the gates to the CMC were breached by prisoners for the second time. You entered the building with the crowd of prisoners but ran back out once confronted by prison staff deploying tear gas.
5 I have been provided with 14 victim impact statements from prison officers at the MRC. The riot had a major impact on their lives. 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.
6 In the case of Luca the Chief Judge of this court 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 prison settings 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."
7 It is not disputed that this riot was a serious example of such an offence. The riot involved a large number of prisoners, it persisted over many hours, it caused millions of dollars 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.
8 I accept that you were not one of those involved in the planning or organizing of the riot. Your contribution was confined to the acts and the period of time that I have already identified. The riot continued beyond this time. Whilst you were a willing participant in the riot, you generally acted as a follower and encourager. Your role was different to those offenders who were directly involved in causing damage or throwing items at officers.
9 You have a criminal history that commences in 2011. It includes appearances in the Children’s Court and the Magistrates’ Court. Your prior offending covers a broad gambit of criminal misbehaviour. You have been subject to a number of Community Corrections Orders which you have had problems complying with. On 29 June 2015 you were sentenced to a five month term of imprisonment at the Ballarat Magistrates' Court. You had been on remand for 48 days prior to this order being made. The riot occurred the day after you received that sentence.
10 Given your criminal history, specific deterrence is a relevant sentencing consideration.
11 There are subsequent matters that are relevant to your personal circumstances. You were released from prison in October 2015. You were charged with the present offence in December 2015. You failed to appear at a committal mention on 12 July 2016. This explains the related summary offence of failing to appear on bail.
12 You were arrested on 31 July 2016 for charges that included family violence, unlawful assault and criminal damage. You were sentenced on those matters at the Ballarat Magistrates' Court on 18 October 2016. Your sentence lapsed on 28 January 2017 and you were remanded in custody on the present matter on 29 January 2017.
13 You are 22 years old. You were 20 years old when you committed the present offence.
14 You come from a stable and supportive family. You are fortunate to still have strong support from your mother, stepfather and your partner. Their support continues even though you have not shown them the respect they deserve.
15 You were not a good student and by the time you were in year 8 you were truanting frequently. You left school at 15 and had a variety of jobs. Over the last three years or so your stepfather has attempted to assist you by providing employment bagging sheep manure.
16 You have a significant drug problem. You told Dr Patel, Consultant Forensic Psychiatrist who assessed you on 15 May 2017, that you began using cannabis at the age of 15 and that you were using it daily by the time you were 17. Your mother said in evidence that after your release from prison in October 2015, you commenced using the drug ice. You got to the stage where you were using the drug daily. You told Dr Patel that when you were deprived of sleep you would experience paranoid thoughts and when you were withdrawing from ice there was a significant increase in your irritability and propensity to act aggressively. Your mother confirmed that at times your abuse of the drug resulted in aggressive outbursts against your family.
17 Dr Patel opines that you do not have a mental disorder. The irritable, impulsive and aggressive behaviour that you have exhibited at times has been caused by your substance misuse.
18 Clearly, your prospects for rehabilitation are very much dependent on your ability to remain drug free. Past attempts to defeat the drug problem have been unsuccessful and, notwithstanding the ongoing support of your family, you have continued to relapse and continued to offend. This explains why I am guarded about your prospects of rehabilitation. However, I do accept that the recent birth of your child may provide an incentive for you to address your drug problem. Dr Patel noted in his report that – “It does appear that he recognises the inappropriateness of ongoing use, particularly in light of his desire to be a good father and a role model for his daughter. Mr Davis was keen to avoid any future use of substances and felt that he didn’t have much difficulty with anger as he has been able to stay sober and out of trouble for several months whilst in custody.”
19 You are still a relatively young man. Although the seriousness of the present offence and your past history temper the weight to be given to the principle of rehabilitation, you are still young enough to change your ways. Rehabilitation still has to a role to play in this case.
20 You entered an early plea of guilty. The plea is indicative of remorse. No witnesses have been required to give evidence and your plea has saved the community the expense associated with a criminal trial. You will be given credit for all these matters.
21 After the riot you were held for a number of weeks in 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.”
22 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.
23 There are a large number of prisoners charged with this offence. Although you willingly participated in the riot and must be sentenced accordingly, you are less culpable than those offenders who directly caused damage and acted violently towards those officers endeavouring to restore order.
24 Since the riot you have been dealt with for other matters and received a sentence of six months. This is relevant because you completed that sentence in January 2017 and, with the present matter having taken some time to resolve, you have lost the prospect of any concurrency with the sentence that I will impose. There must be some moderation of sentence for this reason.
25 Your counsel submitted that the appropriate order in your case was a CCO or a sentence of imprisonment coupled with a CCO. There are two matters which, in combination, speak against such an order. First there is the serious nature of the riot. Secondly, there are your past failures to comply with the requirements of a CCO.
26 Will you stand, please?
27 On the charge of riot, you are convicted and sentenced to 18 months' imprisonment. I fix a minimum term of nine months before you will be eligible for release on parole.
28 On the related summary offence of failing to appear on bail, you are sentenced to be imprisoned for one month. That order to be concurrent.
29 I declare 130 days pre-sentence detention.
30 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to two and a half years' imprisonment with a minimum term of 21 months.
31 I make an order that you provide a buccal swab to the authorities pursuant to s464ZF of the Crimes Act 1958. I must warn you that if you fail to cooperate with the authorities in the taking of the sample, reasonable force can be used to obtain it. I make this order because of the serious nature of the offending, the prior criminal history, the order is not opposed and the making of the order is in the public interest.
32 Is there anything else Mr Ballek or Mr Gray?
33 MR BALLEK: No, Your Honour.
34 MR GRAY: No, Your Honour.
35 HIS HONOUR: Thank you, the prisoner can be removed.
(Prisoner removed.)
- - -
2
0
0