Director of Public Prosecutions v Ditchburn
[2018] VCC 174
•1 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-02121
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CARL DITCHBURN |
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JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 December 2017, 19 February 2018 | |
DATE OF SENTENCE: | 1 March 2018 | |
CASE MAY BE CITED AS: | DPP v Ditchburn | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 174 | |
REASONS FOR SENTENCE
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Subject: Criminal law – Sentence.
Catchwords: One charge riot – Metropolitan Remand Centre Riot June 2015 –.Late plea – Offending towards lower end – Very guarded about rehabilitation prospects.
Legislation Cited: ss 30, 30A, Bail Act 1977; s 6AAA, Sentencing Act 1991.
Cases Cited:DPP v Luca [2016] VCC 1573; R v Caird (1970) 54 Cr App Rep 499; R v McCormack & Ors [1981] VR 104; R v Sari [2008] VSCA 137; De Castres v The Queen; Kent v The Queen [2011] VSCA 377; DPP v Ditchburn [2015] VCC 1298; R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; R v Stevens [2009] VSCA 81; Postiglione v The Queen (1997) 145 ALR 408; DPP v Fikhman (Unreported, Judge Montgomery, 18 August 2017); DPP v Benson [2017] VCC 409; Abdou v The Queen; Chebib v The Queen [2015] VSCA 359.
Sentence: Total effective sentence of 12 months’ imprisonment, with a non-parole period of 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G Hayward | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms C Boston | Giorgianni & Liang Lawyers |
HIS HONOUR:
1 Carl Ditchburn you have pleaded guilty to one charge of Riot[1]. The maximum penalty for this offence is 10 years’ imprisonment.
[1]Contrary to Common Law.
2 You have also pleaded guilty to two unrelated summary offences being a charge of Fail to Answer Bail[2] and a charge of Contravene a Condition of Bail[3]. The maximum penalty for each of these offences is 2 years’ imprisonment and 3 months’ imprisonment, respectively.
[2]Contrary to s 30(1) of the Bail Act 1977.
[3]Contrary to s 30A(1) of the Bail Act 1977.
3 At the time of committing the riot offence you were 30 years of age. You are now 33.
Circumstances of the offending
4 A prosecution opening was tendered as Exhibit 1 on the plea detailing both the overall events of the riot and your specific role in it. .
Overview of events
5 I have previously sentenced some of your co-offenders, including Johnathon Luca[4] for their roles in this riot. The prosecution opening was in the same terms as that put on the plea of Luca at least insofar as the overview is concerned. I adopt the same remarks I made previously regarding the overview of events, the impact upon the victims by reference to the victim impact statements and the relevant principles for this offence. They are accepted by you through your counsel.
[4]DPP v Luca [2016] VCC 1573 (‘Luca’).
6 On 30 June 2015, 200 to 300 prisoners at the Metropolitan Remand Centre (“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.
7 During the riot, fences were breached, prison vehicles, including a tractor, were used to cause damage to gates and fences, the Central Movement Control, which I will refer to as the “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.
8 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 of the prisoners began congregating and chanting for tobacco, through to the late-afternoon when the CMC was breached for a second time. It had essentially finished by 11 pm.
9 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.
10 Following the riot, a large number of the prisoners had to be relocated to other prison facilities, due to large parts of the MRC no longer being operable.
11 As at 11 April 2016, the Department of Justice had incurred $12.1m worth of costs relating to the riot, of which approximately $6.89m related to repairs and maintenance of the MRC. In all, 102 offenders have been charged in relation to the riot.
Your specific role
12 I will move to your specific role in the events of 30 June 2015.
13 You were on remand at the MRC for unrelated matters, housed in Area 2 in the Billingham Unit on the day of the riot.
14 At the time of the routine head count, around 11.45am, you left your cell and joined other prisoners who had begun congregating at the junction of fences between Areas 1, 2 and 3. You watched on as other prisoners started to kick, push and pull on the fences.
15
Around midday these fences were breached. You made your way through the breached fence with other prisoners in Area 3. You had wrapped a white
T-shirt or jumper around your face in an attempt to disguise yourself. You also assisted another prisoner to do likewise, helping him to wrap an item of clothing around his face.
16 A group of prisoners, including yourself, advanced towards the CMC. At this time you removed a jacket you were wearing, turned it inside out and put it back on. You were amongst a crowd of prisoners who were congregating outside the CMC gate. Some prisoners attacked the CMC with makeshift weapons and at about 12.20pm the CMC gate was breached for the first time.
17 You entered the CMC, although you were not amongst the first group of prisoners do so. You went through the breached gate towards the canteen, however you did not enter the canteen. At this time other prisoners inside the CMC looted from the canteen.
18 After some time the CMC was resecured. When some of the other prisoners realised this was occurring, they ran, while disguised and armed, towards members of the State Emergency Group (“SESG”). The SESG deployed tear gas to force the prisoners to retreat. You were among a group of prisoners watching as this occurred.
19 At 12.55pm, still disguised, you congregated with other prisoners near the basketball courts, gathered around a prisoner who was talking and gesticulating with his hands.
20 A few minutes later you and other prisoners made your way through the breached fences between Area 1 and Area 2. There were metal trolleys used as barricades. You approached one of these trolleys and wrung out of a piece of cloth you had dampened with liquid on it. The prosecution accept that you did this in an effort to protect your eyes from tear gas.
21 Around 1.13pm you were in Area 3 with some other prisoners. You and the other prisoners stood around a sheet, as it was raised up, with the words “We want Ox” written on it. The word “Ox” was a reference to prison tobacco.
22 You remained in Area 3 where you and other prisoners were gathered around a prisoner who was talking. Some of the other prisoners were armed. You made a “come over here” gesture to a person, or persons out of camera view. You were still disguised, but by this time you had wrapped a dark piece of clothing or cloth over your head.
23 Around 2.00pm another prisoner breached the fences between Areas 3 and 4 by the force of a tractor. You and other prisoners went through the breached fences into Area 4.
24 Around an hour later, you went back to your unit. You went upstairs to the cells and when you came back down you were adjusting a rubber glove on your right hand. Shortly afterwards footage shows you wearing a breathing apparatus kit.
25 Around 4.30pm, a group of prisoners including you, advanced towards the CMC again. You were still wearing an item of clothing covering your face. Prisoners threw objects at the CMC gates. Some prisoners drove a prison buggy towards the CMC gates and rammed the gates several times. At one stage, you along with the other prisoners helped push the buggy forward to ram into the gates. You pushed the buggy for a few seconds. Eventually the gates were forced and the CMC was breached for a second time. However, you did not enter the CMC on this occasion.
26 About two hours later you were inside your unit and picked up a pole from the ground. The prosecution does not allege that you used this as a weapon.
27 Your participation in the riot ended around 7.52pm.
28 During several prison recorded telephone conversations in July 2015, you made statements regarding the riot including that “It started off like a little protest and next thing the fucking fences coming down”. However, you denied participating because you “knew it was on camera.”
Summary offences
29 The summary offences you have pleaded guilty to relate to your bail which was first granted on 27 May 2017.
30 Those charges are constituted by the following facts. First, on 27 October 2017 you failed to attend at the County Court at Melbourne for your plea hearing. I issued a warrant for your arrest. Second, you had a curfew condition on your bail, which required you to be at your sister’s house. However, on 4 October 2017 during your curfew hours, you were not present at your sister’s house when police attended.
31 I am advised by your counsel that you were in breach of your curfew because you had a fight with your sister. Your counsel also submitted that you were afraid to attend Court on 27 October at your plea hearing as you were scared of being returned to prison.
Victim Impact Statements
32 I now turn to the victim impact statements concerning the riot offence. The prosecution tendered 14 victim impact statements on the plea. These statements have been made by Corrections officers who were working at the MRC on 30 June 2015. There were a number of common themes arising out of the victim impact statements regarding the impact of this event on the officers. Primarily, that the riot had a significant negative impact on those working on that day. 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 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.
Legal principles
33 Likewise insofar as the legal principles in relation to this riot offence are concerned, in Luca,[5] I detailed the relevant the legal principles regarding the offence of riot which emerge from both Victorian and interstate authorities[6]. Your counsel accepted that they accurately reflect the legal principles . Again, I will not read them out today but I adopt them.
[5]Luca [2016] VCC 1573 [17]-[18].
[6]R v Caird (1970) 54 Cr App Rep 499, 505-508; R v McCormack & Ors [1981] VR 104, 108-109; R v Sari [2008] VSCA 137 [62]-[65]; De Castres v The Queen; Kent v The Queen [2011]VSCA 377 [1] [10] [26]-[36].
Gravity of the offending and your role
34 I turn to my assessment of the gravity of the offending and your role. I am required to assess the gravity of the overall riot and your contribution to the riot, in light of the legal principles concerning the offence.
35 As I said in Luca, I consider this to be a very serious example of this type of offence. Your counsel conceded that this was a serious example. 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 that 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 harm which this riot generated; the sense of complete anarchy depicted in the CCTV footage; or the breathtaking scale of damage and loss actually incurred.
36 While minor physical damages and psychological harm was caused to the victims, 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.
37 Now to your specific role.
38 Overall, your counsel submitted that you played a relatively minor role, largely just adding to the numbers. She submitted that in contrast to many of your
co-offenders, you did not do some of the acts which characterised the violent and destructive nature of this riot; you did not assault or threaten anybody, you did not carry a weapon, you did not cause damage or light fires, you did not remove any cell doors or enter units other than your own.
39 I accept that you have not participated in this riot at that high level, however I do not agree that this means that your conduct can be reduced to one of simply adding to the numbers.
40 Your involvement in the riot was prolonged, over some 8 hours. You were persistently disguised, showed some encouragement to other participants, entered several breached areas, were involved in both breaches of the CMC and you were directly involved in the second breach by helping to push a buggy into the gates. This takes your conduct beyond simply "adding to the numbers". Further, as I said in Luca[7], as a participant in the riot you bear some responsibility for the collective damage and harm caused.
[7]Luca [2016] VCC 1573 [15].
41 The prosecution submitted that characterising your role using epithets like “minor” or “major” was not particularly helpful. Instead, it was submitted, I should closely consider what acts you actually did. This is the way in which I have proceeded.
42 Overall, I assess your conduct as being towards the lower end, but not the lowest.
Plea of guilty
43 In relation to the charge of riot, you pleaded guilty prior to pre-trial argument. This is a late plea of guilty. In relation to the bail offences, I accept that you have entered pleas of guilty at the earliest opportunity.
44 Notwithstanding that your plea to the riot charge was late, you still receive credit for the objective utilitarian benefit, through the saving of time and resources associated with running a contested trial and committal. To date no witnesses have been called to give evidence in this matter. Prior to your matter being uplifted for trial, it proceed by way of a straight hand up brief.
45 I accept that your entry of the plea of guilty is also representative of some evidence of remorse and a willingness to facilitate the course of justice. Although it was a plea at the door of the trial, it was your subjective belief that you had a defence to the charge of riot because you did not actively prosecute the riot in the way some of your co-offenders did. In these circumstances, I am prepared to accept that your plea demonstrates some qualified and limited remorse.
Criminal history
46 You have a very lengthy criminal history. Your counsel characterised your history as a typical record for a drug addict. It is a history which is dominated by drug and dishonesty offences. There are also a significant number of driving offences. I accept that this is not a criminal history of violence.
47 Your offending commenced around age 14. In your mid to late teens, you received a number of sentences of youth detention in the Children’s Court. Following these sentences, you were given the opportunity of community based dispositions. In 2002 and 2003, you received two Community Based Orders for separate dishonesty offending in the Magistrates’ Court. These orders had both work and treatment and rehabilitation conditions, which sought to address your drug and mental health issues. You were not able to complete these orders. You were breached and later re-sentenced to periods in youth detention.
48 What followed was a series of terms of imprisonment imposed in the Magistrates’ Court for dishonesty, drug and driving offences. These sentences included parole periods and a number of wholly or partially suspended sentences.
49 Your most serious prior matter is drug related. On 14 November 2011, you were sentenced by her Honour Judge Cannon to 2 years and 6 months’ imprisonment, with a non-parole period of 18 months, for a charge of traffick drug of dependence and two charges of obtain financial advantage by deception.
50 You also have one prior for Failure to Answer Bail from 2003.
51 Mr Ditchburn, you have consistently offended since your mid-teens and been in and out of custody frequently. Your most recent prior matter was a short sentence of imprisonment of 112 days imposed at the Melbourne Magistrates’ Court in August 2014 for dishonesty and drug charges. Mr Ditchburn, you are someone who has effectively been institutionalised.
52 Given your lengthy history, although not characterised by offences of violence and damage, specific deterrence and protection of the community must carry some weight in my sentencing exercise today.
Personal circumstances and disadvantaged background
53 I turn to your personal circumstances and disadvantaged background.
54 As I said earlier, you recently turned 33.
55 You are the eldest child of your parents and have a younger sister. You also have four half-siblings. Your parents separated when you were 2 years old and you were raised by your mother and step-father.
56 You grew up in a dysfunctional and criminogenic environment. You lived with your mother and step-father between the ages of 2 and 10. They were heavy drug users and drinkers and did not work. Your step-father manufactured amphetamines. You recall witnessing police raids on your family home and violence between your mother and step-father. There were often other drug users and criminals present in your home and firearms brought to the house. Your family moved around regularly and you attended several different schools. You had little to no stability in your early life.
57 When you were 10 years old your step-father was gaoled and you went to live with your father in Tasmania. Your father had issues with drugs and gambling and did not work. He left you alone and neglected you. You commenced drinking alcohol at this time. You did not have a good relationship with your father and this arrangement lasted only 12 months.
58 You then returned to Victoria, and along with your siblings, moved into Odyssey House, where your mother and step-father were undergoing residential rehabilitation. You were bullied at school by other children who knew about your living conditions. You started to truant. You also commenced using cannabis at that time.
59 At age 13, you progressed to using heroin and amphetamines.
60 You have had a very limited education. You completed year 7 at high school, but left school in year 8. You were living on the streets after you left school. Around this time, at age 14, you had your first Children’s Court appearance. From this time onwards, as I said earlier, you had a number of appearances in the Children’s Court and during your youth were in and out of youth detention.
61 When sentencing you in 2015, His Honour Judge Michael Bourke described this time as “very insecure and often frightening.” [8] I will return to this sentence shortly in dealing with totality considerations.
[8]DPP v Ditchburn [2015] VCC 1298.
62 By age 17, you had commenced using methlyamphetamine. Around this time you also commenced your first relationship and a daughter was born. You have not seen your daughter since 2007. You experienced depressive symptoms and were self-harming in the years after your daughter was born. You were prescribed anti-depressant medication.
63 As I have already said, you have served a number of periods of imprisonment covering much of your late teen to adult years. You have not had any sustained period of employment as a result. You have also struggled to secure stable accommodation when you have been out of custody, experiencing significant homelessness.
64 However, during your recent period of bail you resided with your younger sister at her home in Heidelberg West. Notwithstanding your personal and custodial history, you continue to have the support of your family, particularly your mother, who has been in court, and your siblings.
65 Sadly, most of your life has been dominated by drug use and addiction. At a previous bail hearing, you were frank about your difficulty navigating pressures outside custody in relation to these issues.
66 To date, you have not engaged in any meaningful and sustained drug rehabilitation in the community. You have remarked that your only periods of being clean and successfully abstaining from drugs have been effectively in custody. You are currently in custody and have not been using illicit substances recently. Your counsel advised that you are not taking any medication either. Subsequent to your plea hearing, I have been provided with three clean supervised urine drug screens confirming these matters. It is encouraging, but, as you have already observed yourself the real difficulty is continuing to remain drug free outside gaol.
67 Your early life and personal circumstances speak to an entrenched level of disadvantage. In reports dated 25 June 2013 and 2 September 2015, exhibited at your plea, forensic psychologist Ms Pamela Matthews, observed that you presented as someone “with a multigenerational history of exposure to violence, substance dependence and criminal activity.”
68 This entrenched disadvantage has had consequences for your development and coping mechanisms. In a report dated 11 August 2014, also tendered on the plea, Ms Michelle Wauchope, forensic psychologist, observed:
"This dysfunction, lack of secure attachment, and lack of stability, the lack of any limits and boundaries at a developmentally and emotionally vulnerable time, and the associated general and emotional difficulties, all resulted in [you] turning to substances from an early age and led to early delinquent and anti-social behaviour and various mental health difficulties; which patterns of learned dysfunctional coping and behaviour continued into [your] adult years."
69 Your counsel submitted that your disadvantaged background is important in assessing your moral culpability for this offending and places your drug addiction into context.
70 In assessing your moral culpability for this offending, I must give full weight to the profound and lasting impact that a deprived childhood like yours has had on you and in particular on your ability to cope, control your impulses and manage anti-social behaviours.[9]
[9]Bugmy v The Queen (2013) 249 CLR 571 [43]-[44].
71 On the day of the riot, you resisted in engaging in many of the particularly troubling anti-social behaviours, but were ultimately unable to resist the urge to join in. I accept that your disadvantaged background has compromised your ability to mature and learn from experience and as a result your moral culpability for this offending is reduced to some degree.
Mental health conditions and Verdins
72 A number of psychological reports prepared earlier in time were tendered on your plea. I have already referred to some of those reports. In terms of your mental health conditions, particular reliance was placed upon the report of forensic psychologist Dr Aaron Cunningham, which was tendered at your further plea hearing. He assessed you in late January this year.
73 Dr Cunningham diagnosed you as suffering from Generalised Anxiety Disorder and Antisocial Personality Disorder. You also presented with symptoms of trauma. He noted that you experienced panic and excessive worry and that you had an inability to control this worry. You reported experiencing nightmares and night terrors and being exposed to violence, including stabbings while in gaol.
74 Dr Cunningham was of the opinion that your anxiety disorder was a reflection of your experiences of childhood trauma and instability, combined with your inability to cope in the community. Having earlier stated in his report that the structure and routine of gaol would act as a stabilising influence on your mental state, Dr Cunningham gave the following opinion:
"Whilst exposure to trauma in gaol would, in the long-term, perpetuate and aggravate this anxiety, the structure and routine of gaol currently act to contain [your] anxiety symptoms."
75 Your counsel did not ultimately pursue a submission that your moral culpability was moderated by reason of the application of Verdins principles[10].
[10]R v Verdins (2007) 16 VR 269.
76 However, your counsel submitted that Dr Cunningham’s diagnosis and opinions, against the background of the previous psychological reports, provide a basis for me to find that Verdins propositions 5 and 6 are enlivened.
77 In respect of Verdins proposition 5, your counsel submitted that it was clearly enlivened. She submitted that your Generalised Anxiety Disorder, will mean that the sentence of imprisonment that I will impose on you, will weigh more heavily on you, than on someone who was in normal health. Your counsel submitted that while Dr Cunningham does not explicitly make this comparison, I could infer this from the overall tenor of his report and opinions.
78 Counsel for the prosecution submitted, based upon Dr Cunningham’s opinion that the routine and structure of gaol was acting to contain your anxiety, that your experience of imprisonment was, in fact, not more burdensome than someone in normal health.
79 As I have already observed, you are someone who is institutionalised. In my view, the fact that you find it easier to manage your anxiety symptoms in gaol, does not detract from the fact that you have a mental health condition which causes you to experience symptoms including excessive worry, panic and night terrors. I do not read Dr Cunningham’s report as expressing the view that gaol has completely ameliorated or mitigated your anxiety symptoms. Your experience of gaol, in light of these symptoms, will be more difficult than for someone who is in good health, who does not experience these symptoms. Therefore, I am prepared to find that Verdins principle 5 is enlivened. I will give this some weight in mitigating the sentence that I impose upon you.
80 Reliance was also placed on Verdins proposition 6. Your counsel submitted there was a serious risk of imprisonment having a serious adverse effect on your mental health. She submitted that Dr Cunningham’s opinion that your anxiety would be perpetuated and aggravated in gaol, in the long-term, with exposure to trauma, was sufficient to enliven Verdins principle 6. She submitted that because you are someone who already experiences a very high level of anxiety, any aggravation will amount to a significant level of deterioration.
81
Even assuming that you will be exposed to traumatic experiences in gaol,
Dr Cunningham’s report does not provide any qualitative opinion about the degree of aggravation to your mental health condition that this further exposure would occasion. Dr Cunningham seems to also note that any such potential aggravation will be offset to some degree by the fact that the structure and routine of gaol would contain your anxiety symptoms. I am unable, in the end, to be satisfied that Verdins principle 6 is enlivened. That said, I do take into account more generally that there are likely to be times where your mental health issues will be more acute in prison, which will in turn make imprisonment more difficult for you.
Onerous time in custody
82 In the aftermath of the riot, conditions for prisoners were more restrictive. You remained at the MRC until September 2015, where you were subject to restrictions regarding out of cell time and prisoner association. You were locked down in your cell for 23 hours a day until the end of August. By September, you had between one and four hours out of your cell with some time in the exercise yard.
83 In mid-September you were transferred to Port Phillip Prison, where you remained subject to restrictions because of the allegations of your involvement in the riot. You were in 22 hour lockdown. You were also restricted from associating with other prisoners and had more limited access to amenities, including the library.
84 You remained at Port Phillip Prison. You complied with this restrictive regime without incident and you had positive behaviour reports. As such on 28 July 2016, some 13 months after the riot, you were returned to mainstream prison. This entitled you to enjoy a minimum of 11.5 hours out of your cell. Other restrictions were removed.
85 All of these matters were confirmed in an affidavit deposed by Assistant Commissioner of Corrections Brendan Money.
86 I accept that these conditions, particularly the experience of 22-23 hour lockdown for some 13 months, were onerous. However, as I have said in sentencing your co-offenders, any benefit you get for this must be moderated by the fact that you contributed to the circumstances that resulted in the restrictive conditions, namely through your participation in the riot. Ultimately, the credit you get for this is a question of degree.[11]
[11]R v Stevens [2009] VSCA 81 [18]-[24].
87 I also take the difficult conditions into account, insofar as they may have had
a deterrent effect upon you.
88 More recently while on remand for this matter at Port Phillip Prison you have experienced restrictive conditions again, as a result of a fire on 29 November 2017, which caused extensive damage.
89 From late November until 20 December 2017 you were subject to lockdown of 23 hours a day in your cell. During this period you did not have access to the yard but another smaller area. Family visits and telephone calls were also stopped. Most of these restrictions were lifted in January this year, however you are still allowed only one family visit per week, as opposed to two or three. I also take these matters into account.
Subsequent matters and totality
90 On 11 September 2015 at the County Court at Sale, His Honour Judge Bourke, sentenced you to 2 years and 9 months’ imprisonment for a number of dishonesty and driving charges. A non-parole period of 18 months was set, however you ultimately served the entire head sentence.
91 You were on remand for these charges at the time of the riot.
92 The principle of totality requires that I take into account this sentence in fixing my sentence today in respect of the riot charge. You have lost the opportunity for a degree of concurrency between these sentences. In fairness to you, I must therefore consider, in a general way, what sentence would have been imposed had you been sentenced for both of these matters at the same time.
93 Your counsel submitted that the 15 month period you served between the end of your non-parole period, from 27 February 2016, until the completion of your head sentence on 26 May 2017, is of particular relevance in fixing a sentence today in accordance with the totality principle.
94 Your counsel was unable to put evidence before me as to why you were not granted parole, and precisely what part this present offending may have played in requiring you to serve the entire sentence. It was put to me that it was probably a combination of factors including your criminal record and the fact that you had been charged with the riot offence.
95 Irrespective of this uncertainty, I will take into account in a general way the entire time that you have served under the Judge Bourke sentence, in particular, and including the 15 months you have served after your earliest eligibility for release on parole date.
Prospects of rehabilitation
96 You have had a chronic history of substance abuse starting at a very young age. You have an extensive criminal history, including a history of breaching court orders. At 33, Mr Ditchburn, you are no longer a young man.
97 There are some positive factors in your favour – including your good behaviour in prison after the riot, your recent abstinence from drugs as demonstrated by the clean tests provided to me and the support of you family including your mother. The time that you have spent in prison since the riot should also serve as a deterrent to you. However, against this is the fact that the bail offences for which you fall to be sentenced today occurred subsequent to the riot and subsequent to your service of the Judge Bourke sentence. That is of concern to me.
98 Your prospects of rehabilitation are ultimately tied to your ability to remain drug free in the community and to manage your mental health conditions.
99 Dr Cunningham assessed that you are a “high risk of ongoing drug relapses and offence behaviour in the community.” In Dr Cunningham’s opinion, your ability to live independently and cope with day to day stresses has been impaired by your long term history of incarceration and drug abuse.
100 While I can see that you have the support of your family and you have been abstinent from using drugs while in custody, the factors I have already mentioned mean, unfortunately, that I am not at all confident about your prospects. I am certainly very guarded.
Parity
101 Parity is also a relevant consideration. A number of your co-offenders have already been sentenced for their roles in this riot. I must take into account their sentences in fixing your sentence. In doing so, however, I must make due allowance for the respective criminality of each offender, for their differing antecedents, personal circumstances and mitigating factors.
102 Further, in considering the relativities, I must consider each component of the sentences imposed. Where a co-offender was serving another term of imprisonment, I must also consider the extra period of imprisonment which the co-offender was required to serve as a result of the riot offending.[12]
[12]Postiglione v The Queen (1997) 145 ALR 408, 441.
103 Submissions on parity were directed in particular towards three of your
co-offenders: Luca[13], Fikhman[14] and Benson[15].[13]Luca [2016] VCC 1573.
[14]Director of Public Prosecutions v Fikhman (Unreported, Judge Montgomery, 18 August 2017).
[15]Director of Public Prosecutions v Benson [2017] VCC 409 (‘Benson’).
· I sentenced Luca to 2 years and 5 months’ imprisonment, adding 21 months’ to his total effective sentence and 12 months to his non-parole period.
· Fikhman was sentenced to 14 months’ imprisonment, of which 6 months was directed to be served cumulatively on the head sentence he was already undergoing, with an additional 2 months and 20 days added to the non-parole period.
· Benson was sentenced to 15 months’ imprisonment, with a non-parole period of 5 months.
104 Your counsel submitted that your offending was not nearly so serious as Luca’s and that your role in the riot was broadly comparable to that of Fikhman and Benson. She relied on the joint position of the defence and the prosecution, at the point of resolving the riot matter to a plea of guilty, that your role in the riot was closest to that of Fikhman and Benson. However, she further submitted that your offending was even less that these co-offenders.
105 The prosecution agreed that your offending was less than Luca’s and submitted that it was “more in line” with that of Fikhman and Benson.
106 I accept that your objective role in this riot is less than that of Luca and is in line with that of Fikhman and Benson. I do not agree that your offending is less than that of the two offenders Fikhman and Benson. Like you, their offending sits towards the lower end; they did not cause any damage, they did not threaten or assault anyone or light any fires. All three of you entered the CMC following the first breach. However, significantly you were involved in the second breach of the CMC by assisting to push a buggy into the CMC. Your offending was more prolonged, with your co-offenders participating in the riot for some three to four hours. On the other hand, you did not loot the canteen during the first breach of the CMC which both of your co-offenders did. You did not enter as many units; you did not throw missiles at the CMC and you did not keep a look out for prison guards.
107 In the end I proceed upon the basis that your roles were broadly comparable with that of Fikhman and Benson.
108 While I have accepted your role was broadly comparable to Fikhman and Benson, there are differences in your personal and mitigating circumstances, which I take into account, particularly in respect of Benson. Benson had undertaken substantial steps towards his rehabilitation, successfully completing two community correction orders, with the sentencing judge finding that he had turned his life around.[16] I am not able to make a finding as to your prospects which is anywhere near as positive as this.
[16]Benson [41].
109 Your personal circumstances are perhaps more similar to Fikhman. You both have substantial criminal histories and you both have mental health issues. There does not appear to have been a finding about Fikhman’s prospects.
110 There are of course some differences in your favour. They include: unlike Benson, you have lost the opportunity for a degree of concurrency with the Judge Bourke sentence, particularly the non-parole period. While totality was relevant in sentencing Fikhman, he was already undergoing another sentence, he had the opportunity of some concurrency. Your background is also more disadvantaged than your co-offenders.
111 Of course, the issue of parity is informed by all of the sentences of comparable offenders, not just one of them.[17]
[17]Abdou v The Queen; Chebib v The Queen [2015] VSCA 359 [62].
Community Correction Order
112 The primary sentencing submission of your counsel was that a Community Correction Order (‘CCO’) could satisfy all of the sentencing aims, taking into account all the relevant principles. In the alternative, your counsel submitted that I should impose a short period of imprisonment, allowing for effectively your immediate release - in conjunction with a CCO.
113 Your counsel relied primarily on the significant weight which the principle of totality required. Your counsel also submitted a CCO with treatment conditions provided the best opportunity for you to successfully address your longstanding drug addiction, ensuring your long term rehabilitation. Long term rehabilitation with supported reintegration into the community, was ultimately what was in the community interests and would protect the community upon your eventual release, your counsel submitted.
114
In my view, the only appropriate sentence in this case is a sentence of imprisonment with a non-parole period, having regard to all of the relevant principles which I must consider. Mitigating factors such as the totality principle are of course important. But in sentencing you today in respect of the riot charge, general deterrence and denunciation must also assume some prominence. While your offending is towards the lower end, relative to your
co-offenders, this is a very serious example of the offence of riot.
115 I also have little confidence about your ability to comply with a Community Correction Order. You have a very long criminal history, spanning almost 20 years. You have previously breached two Community Based Orders, and four suspended sentences. You have previously failed to appear on bail and very recently you breached your bail, twice, for which you now fall to be sentenced.
116 It will ultimately be for the authorities to determine whether you should be granted parole and the conditions under which you should serve that parole. Should the authorities see fit to grant you parole, they will no doubt take into account the need to ensure that you are supported in your reintegration into the community.
Pre-sentence detention
117 Since your arrest on 8 November 2017, you have served 113 days in pre-trial custody, not including today, referrable to the riot charge. I make that declaration of pre-sentence detention, that will go into the record.
Sentencing
118 Mr Ditchburn, would you please stand.
119 On the charge of Riot, I convict and sentence you to 11 months’ imprisonment.
120 On the charges of Fail to Answer Bail and Contravene Condition of Bail, I convict and sentence you to an aggregate term of 1 month's imprisonment. I direct that this be served cumulatively upon the sentence imposed on the riot charge.
121 That makes for a total effective sentence of 12 months' imprisonment.
122 I set a non-parole period of 4 months.
123 I declare that 113 days’ imprisonment has already been served under this sentence, not including today, and I direct that this fact be entered into the record.
124 I also declare that, pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a sentence of 22 months’ imprisonment, with a non-parole period of 11 months.
125 Yes. Mr Ditchburn, you can sit down. Anything else arising?
126 MS BOSTON: No, Your Honour.
127 HIS HONOUR: Yes, if Mr Ditchburn could be taken away, please. Yes, thank you. If we adjourn the court, please.
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