Director of Public Prosecutions v Dodd
[2017] VCC 1256
•31 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00553
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT DODD |
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JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July, 16 August 2017 | |
DATE OF SENTENCE: | 31 August 2017 | |
CASE MAY BE CITED AS: | DPP v Dodd | |
MEDIUM NEUTRAL CITATION: | 2017 VCC 1256 | |
REASONS FOR SENTENCE
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Subject: Criminal law – Sentence.
Catchwords: One charge riot – Metropolitan Remand Centre riot June 2015 – Early plea – high level offender - youthful offender – very poor criminal history – guarded prospects of rehabilitation.
Legislation Cited: 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 [2011] VSCA 377; R v Renzella [1997] 2 VR; El-Waly v The Queen (2012) 46 VR 656; R v Karpinski (2011) 32 VR 85; R v Chimirri [2003] VSCA 45; R v Stevens [2009] VSCA 81; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43; DPP v Barnes [2017] VCC 447; Postiglione v The Queen (1997) 145 ALR 408.
Sentence: 3 years and 2 months’ imprisonment with a non-parole period of 22 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K. Gilligan with Mr G Hayward | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms C. Duckett | Emma Turnbull Lawyers |
HIS HONOUR:
1
Brett Dodd, you have pleaded guilty to one charge of riot, which carries
a maximum penalty of ten years’ imprisonment. Your offending occurred on
30 June 2015 at the Metropolitan Remand Centre, which I will refer to as the “MRC”. You were 22 years old at the time of the offending. You are now 24 years old.
Circumstances of the offending
2
A prosecution opening was tendered on the plea. Insofar as the overall events of this riot are concerned, there was no dispute as to the facts. It is sufficient to provide a summary. There was some factual dispute as to your role, which
I will come to.
Overview of events
3 I have previously sentenced some of your co-offenders, including Johnathon Luca[1] for their roles in this riot. The prosecution opening was in the same terms as that put on the plea of Luca. I adopt the same remarks I made previously regarding the overview of events.
[1]Director of Public Prosecutions v Johnathon Luca [2016] VCC 1573 (‘Luca’).
4 On 30 June 2015, 200 to 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.
5 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.
6 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.
7 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.
8 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.
9 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
10 I turn to your specific role in the events of 30 June 2015.
11 At the time of the riot, you were on remand for unrelated matters and housed in the Bellbridge Unit, located in area 3 of the MRC.
12 By midday, you and other prisoners remaining in the outdoor yards, congregated near the point where the three yards converged. A number of prisoners then began kicking the fences between these areas until the fence was breached.
13 Around 12.20 pm, you moved between the breached yards and congregated with other prisoners at the front of the CMC. You moved several prisoners out of the way of the CMC gate to better facilitate forcing entry to this building
14 Several minutes later when the CMC was breached, you entered with other prisoners. You picked up a chair and smashed it against the front of the officers' post. You removed your top and used it to cover your face. You then broke
a leg off a table and used this as a makeshift weapon.
15 With a weapon in hand, you led the charge with three other prisoners and chased prison officers and staff towards the safety of the Gatehouse along
a walkway. You brandished your weapon near a passing prison van and narrowly missed. You and the other prisoners taunted the prison guards with weapons still in hand, before retreating.
16 You have entered the canteen, which had already been breached by other prisoners. You exited a short time later carrying large boxes, which you threw on ground near the fence line. You ripped them open, spilling the contents all over the ground.
17 Around 12.35 pm, you and other prisoners realised that prison officers had taken temporary control back of the CMC and you ran back to the CMC with
a weapon in hand. You and others began taunting the officers and you threw
a missile at the CMC. You retreated only after tear gas had been deployed. You were holding a pole as a weapon about ten minutes after your retreat.
18 Around 12.49 pm, the Ballan Unit was breached. You, along with a large group of prisoners, entered the unit. You used your weapon to damage the CCTV camera inside. Your cap fell off and you replaced it with gas mask. Minutes later you were outside in area 2 wielding a piece of timber as a weapon.
19 Then you began to move through one unit after another. You took something from behind the officer’s post in the Albion Unit, you held a weapon inside the Burnside Unit, you kicked and struck an internal door in the Bellbridge Unit, you used a pole to repeatedly strike a cell door in the Billingham Unit. You entered the kitchen and laundry area where you brandished a weapon.
20 At approximately 2.00 pm, you were on a buggy as it breached the fence between area 1 to area 3. The buggy became stuck. At this time another prisoner was driving a tractor into the fence line. You were actively encouraging this prisoner to drive the tractor at the fence, pointing in the direction of the fence.
21 Several minutes later, you were near the gates of the Chartwell Unit, as they were breached by the tractor. You proceeded to follow the tractor back around towards the CMC. The prosecution allege that at about 2.07 pm, you signalled to other prisoners in the area to attend. You dispute this fact. I find beyond reasonable doubt that you were signalling to other prisoners and I will hand down a ruling that I have made with respect to these disputed facts shortly.[2] After the tractor struck the gates, you walked next to it and raised a pole in the air towards the CMC. You retreated after tear gas was deployed.
[2]Director Public Prosecutions v Dodd (Ruling No 1) [2017] VCC [3]-[4].
22 Around 3.55 pm, you were in area 3, handing out tennis racquets to other prisoners and you armed yourself with a racquet. You and the other prisoners confronted prison officers lined up behind the Billingham Unit, lobbing missiles at them.
23 Armed with a weapon, you then led a large group of prisoners to the CMC. Officers used tear gas canisters to attempt to defend the CMC. You used your racquet to propel the gas canisters back towards prison staff. Around 4.30 pm, the second attack on the CMC occurred and you were actively involved. You helped push a buggy into the gates, moved a trolley out of the buggy’s way and slammed the “closers” above the gates of the CMC with your racquet. Eventually the CMC was breached. You entered and then retreated, only after tear gas was deployed.
24 Around an hour later, you joined other prisoners and prepared to attack the CMC again. You stood behind a makeshift shield devised from a ping-pong table. As prison officers deployed tear gas at the inmates, you withdrew and threw one of the canisters back at the officers. Prisoners had positioned burning mattresses in the yard outside the CMC. You continued to be armed.
25 The prosecution allege that at 5.46 pm, you and other prisoners attempted to topple a camera on a pole in one of the yards. You dispute this fact. I am unable to be satisfied beyond reasonable doubt that you were involved in this incident and again, I deal with that factual dispute in my separate ruling.[3]
[3]Director Public Prosecutions v Dodd (Ruling No 1) [2017] VCC [5].
26 The prosecution also allege that around 6.07 pm, you and another prisoner reversed a buggy loaded with burning mattresses into the gates of the CMC. You dispute this fact. I am unable to be satisfied beyond reasonable doubt that you were involved in this incident. Again, I deal with this factual dispute in a separate ruling.[4]
[4]Director Public Prosecutions v Dodd (Ruling No 1) [2017] VCC [6]-[13].
27 At about 6.20 pm, you threw items at the prison officers inside the CMC and were repelled by the use of a hose. Your participation in the riot concluded around 7.10 pm, when you and a group of prisoners, shielded by a ping pong table, picked up a panel and ran towards the CMC. You were again sprayed by the hose and ran from the gates.
28 At some point during the riot, you were on a tractor that was being driven around, taunting prison officers. It became apparent on the plea that while the defence did not dispute that you were on the tractor, it was disputed that you were the driver. The prosecution clarified on the plea that it was put that you were on the tractor, but not the driver. In the end there was no dispute about this matter.
29 You were interviewed in relation to this offending on 1 October 2015 and gave "no comment" answers, as was your right.
Victim Impact Statements
30
I now turn to the victim impact statements. 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
31 I turn to the legal principles in relation to this offence. In Luca, I detailed the relevant the legal principles regarding the offence of riot which emerge from both Victorian and interstate authorities[5]. I repeat those principles again here:
[5]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].
·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;[6]
·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.[7]
[6]R v McCormack & Ors [1981] VR 104, 109.
[7]De Castres v The Queen; Kent v The Queen [2011] VSCA 377 [1] [10] [26]-[36].
Gravity of the offending and your role
32 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 above principles concerning the offence. I made a number observations about the overall gravity of this riot in sentencing your co-offender, Luca. I adopt and repeat those observations now.
33 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 incurred.
34 While minor physical damages 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.
35 Now to your specific role. I accept that you were not involved in the planning or organising of the riot. However, your participation in the riot was very significant and persistent, once the riot had commenced. You were often at the forefront of the riot and I find you were especially committed to it. Relative to the other rioters, your participation is properly characterised as being at a “high level”, as the prosecution submitted.
36 Your conduct was prolonged. You participated in the riot across some seven hours, from about midday until about 7 pm.
37 You attempted to conceal your identity with clothing and prison equipment.
38 Your participation in the riot was broad in scope. You accessed at least five of the units and mindlessly caused damage and looted in a number of different areas, including disabling a CCTV camera.
39
You had a number of confrontations with Corrections officers. I consider these confrontations to be the most serious example of your involvement in this riot. You not only verbally taunted and intimidated these officers, but you acted in
a violent and threatening manner towards them. I have made mention of the sinister occasion in the walkway, where you and three other prisoners, brandishing weapons, chased Corrections officers. You led the charge. These officers retreated in fear, running for the safety of another building.
40 Indeed throughout the riot, you obtained and brandished a number of makeshift weapons, including a table leg, a pole and a tennis racquet. On one occasion you possessed weapons in both hands. You used these weapons to great effect, including when you were able to return tear gas canisters towards Corrections officers with a racquet. You also threw other unknown objects as missiles at officers.
41 I have, of course, ignored the two disputed facts resolved in your favour. The burning mattress incident is particularly serious, involving as it did, an aggressive attack on prison officers with burning material. As I have said, I am not satisfied of that matter beyond reasonable doubt and I do not take into account against you. That said, these findings which I have resolved in your favour, cannot and do not detract from the overall seriousness of your admitted and proven conduct. I still categorise your conduct as being very significant and at the “high level”, despite my finding that you did not engage in the pole episode or the burning mattress episode.
Criminal history
42 You have a very poor criminal history. Your offending has been varied, offences of violence, property damage, dishonesty, driving and drug offences.
43 From 2006, you received multiple non-custodial sentences in the Children’s Court, including supervision and probation.
44 By the time of this riot, you had already received a number of sentences of detention and imprisonment in the Children’s, Magistrates’ and County Courts.
45 In 2009, you were sentenced to six months’ detention in a Youth Justice Centre by the Children’s Court.
46 In 2011, you were sentenced to 18 months’ imprisonment by the Latrobe Valley Magistrates’ Court for offences of violence, criminal damage and dishonesty.
47 In 2013, you were sentenced by his Honour Judge Montgomery at the County Court to three years’ detention at a Youth Justice Centre for offences including aggravated burglary, robbery and threat to inflict serious injury.
48
Also in 2013 and shortly after this youth detention sentence, you received
a further concurrent sentence of six months’ imprisonment from the Latrobe Valley Magistrates’ Court, for further offences of dishonesty and violence.
49 You were released from custody for a brief period of time, before being returned to custody in December 2014. By April 2015, you had been moved from Youth Detention to adult custody at the MRC, where you remained until the day of the riot.
Personal details and mental health issues
50 I turn to your personal details and some of your mental health issues. You are now 24 years old.
51
You come from a mixed family home. Your parents separated when you very young and your mother re-partnered. You have an older brother, three younger half-siblings and two step-siblings. You have had almost no contact with your biological father, though the material put before me suggests that at an early age, you experienced violence at his hands. You continue to have
a relationship with your mother and step-father.
52 You were placed in the care of the Department of Health and Human Services when you were 12 years old, as your family were struggling to manage your anti-social behaviours. You had a number of different placements and were often living on the streets during your teenage years. By that time, you had been diagnosed with attention deficient hyperactivity disorder, "ADHD" and an anxiety disorder. You were medicated for these for many years, however as I understand it, you are not currently medicated.
53 You have more recently been diagnosed with post-traumatic stress disorder, “PTSD”. You instructed your counsel not to put the details of at least part of the cause of your PTSD before the court, although there were references to the same in the reports exhibited on your plea. I have read those reports.
54 You have a long history of drug use, commencing around age 13 with cannabis. You first used heroin in adult custody and have also used methylamphetamine. Historically, I am told your offending has been linked to your drug use.
55
You have had a limited education, completing Year 7. You have a sparse work history, very interrupted by your time in custody. I am told that you have previously worked in furniture removals and you enjoyed this type of work.
I have also been told that you have an opportunity to work with your uncle upon your release.
56 You have a son, Tyler, who is two and half years old. You have not seen him while you have been in custody, which has been for much of his life. I am told that you do not want to expose your son to the custodial environment. You are anxious to protect your son from some of the negative and traumatic experiences you have had in your life. Ultimately, your goal is to be involved in your son’s upbringing and to support him in life. I accept that is what you want to do and that it is an important motivation for you.
57 You have received considerable support since your teenage years from Darren Coldebella and Lisa McMillian. They have provided you with a personal reference, which was tendered and exhibited on the plea, but were not able to attend court due to health reasons. You met them when you were around 14 or 15 and living rough. They provided you with a home and treated you as part of their family. They continue to support you and are in regular telephone contact. They consider you their “loyal loving son.” I am told you are anxious about their poor health and I accept that.
Relevance of personal background and mental health issues
58
I now just want to say something about the relevance of your difficult background and your mental health issues. You clearly have had
a disadvantaged background, which does provide the setting for your criminal history and the instant offending. Your counsel did not seek to raise your diagnoses of PTSD or ADHD or anxiety, as attracting the Verdins principles, but rather as general context for your overall offending. It is submitted that when considering your role, I should generally take account of the fact that you were a young, ill-equipped male, with some mental health issues, who had already been in custody for a significant period of time. This made it more difficult, it was submitted, for you to resist getting involved in this riot.
59 There are no up-to-date medical or psychological reports which explicitly support this submission. There are no reports dealing with this specific offending. However it does seem clear that you have this background and you suffer from these issues. As a matter of common sense, it does provide the broad setting for this offending. I am prepared to take it in account in a general way.
60 Of course the submission can only take you so far. It really does not fully account for the very high level of enthusiasm and commitment with which you embraced and persisted with the riot. You were certainly not someone who reluctantly became involved.
Plea of guilty, utilitarian benefit and remorse
61 You pleaded guilty at your committal hearing. You had already indicated your intention to plead guilty at an earlier committal mention hearing. I accept that this is an early plea of guilty.
62 You receive credit for the objective utilitarian benefit, through the saving of time and resources associated with running a committal and a contested trial.
63 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. It was not submitted to me that there was any other evidence of remorse beyond this.
Totality and Renzella
64 I now turn to questions surrounding your custody and totality and Renzella. On 17 September 2015, you were sentenced by the Latrobe Valley Magistrates’ Court to 278 days’ imprisonment and placed on a six month Community Corrections Order. I will refer to that as a “CCO”. This offending, which involved violence and property damage, occurred before the riot. You had already, at the date of that sentence served 278 days, and you were to be released on your CCO, but instead you were returned to Youth Justice Detention. The period of custodial time between the commission of the riot and the date of this particular sentence, namely 17 September, was thus allocated towards this 278 day period sentence of imprisonment.
65 Since 17 September 2015, you have largely remained in custody.
66 Between 17 September 2015 and 17 November 2015, you were serving time on the Youth Justice Detention on your unexpired youth parole, being the Judge Montgomery sentence, which I referred to earlier. That period of time is thus allocated towards the Judge Montgomery sentence.
67 You were subsequently released on 17 November 2015, but remanded in custody around 10 December 2015 on further alleged offending. You have remained in custody since that time. These outstanding charges have not yet resolved. These offences were allegedly committed during your brief release in late-2015. As I understand it, you are contesting these charges. As these matters are unresolved, I will not take these into account in a manner adverse to you.
68 Around Christmas 2015, you were served with a summons for this riot matter. You were, however, not remanded on the riot matter at that time. Following your committal hearing for the riot matter on 21 March 2017, you did not apply for bail and you were remanded on the charge of riot. You have therefore been on remand for the riot matter since that date and I will declare that period shortly as time reckoned to have been served under the riot sentence.
69 It follows from the above, that prior to being remanded on the riot matter:
· First, you accumulated time in custody until 17 September 2015, which was allocated to the sentenced imposed by the Latrobe Valley Magistrates’ Court;
· Second, you then served a period of two months between 17 September 2015 and your release on 17 November 2015, which was attributable to the Judge Montgomery sentence; and
· Third, between 10 December 2015 and 20 March 2017, you have accumulated a significant period of pre-sentence detention in relation to outstanding matters. The time is unallocated because it has not yet been applied to any sentence.
70 I will take all these periods of custody into account under the principle of totality or the Renzella principle. It is not always clear which of these principles applies, but what matters is that the periods of time are taken into account. Both principles require me to take account of the fact that you have been serving significant pre-sentence custodial time which cannot be declared under s.18 of the Sentencing Act. Both are aimed at ensuring a just and appropriate sentence.
71 More specifically, in relation to the 17 September 2015 Latrobe Valley sentence, I must make allowance for the fact that you have lost the opportunity of a degree of concurrency between that sentence and the sentence which I am about to impose on you for the riot. I accept the principle of totality applies. That requires me to give some consideration to the overall sentence that would have been imposed upon you, had you been sentenced for all of these matters at the same time.[8]
[8]R v Renzella [1997] 2 VR 88; El-Waly v The Queen (2012) 46 VR 656 , 673-674 [107] – [114].
72 I also take into account, in a similar way, the approximately two month period of time you spent in custody under the Judge Montgomery matter.
73 As for the period from December 2015 to March 2017, the fact that this period of detention is referrable to unrelated and unresolved pending charges, does not detract from any obligation to take that period into account. The law provides that ordinarily, such pre-sentence detention is to be taken into account at the first opportunity in the exercise of the court's discretion.[9] While you were not remanded on the riot charge during this period, for most of that period you had been charged with the riot and you were awaiting trial on it. The fact is, had you been remanded on the riot matter, rather than charged on summons, you would be getting the benefit of having this period of time formally declared as pre-sentence detention on the sentence I am about to impose.
[9]Rv Karpinski (2011) 32 VR 85, 98 [53].
74 The prosecution accepts that I should take this period into account. I have not been asked to reduce your sentence in a mathematical way. The period is
a relevant consideration to be taken into account by me to arrive at a sentence which is just and appropriate. Because it is a lengthy period, I have given significant weight to this factor and in consequence, have materially reduced your sentence. I should say that I think this unallocated time really raises
a Renzella issue, rather than a totality issue, given that the time does not relate to any proven offending. In the circumstances, I cannot make an assessment of the sentence which you might have received for that offending and the riot. In my view, nothing of substance turns upon how it is characterised. What is important is that I take it into account. [10]
[10]R v Chimirri [2003] VSCA 45 [5]; Rv Karpinski (2011) 32 VR 85, 102 [69]-[71]; El-Waly v The Queen (2012) 46 VR 656, 673-674 [110] – [114].
Onerous time in custody
75 I now turn to the conditions of the pre-trial custody that you have experienced. While you have been in custody since the riot, you have had restrictive conditions imposed.
76 In the aftermath of the riot, conditions for prisoners were more restrictive, with lockdown times of up to 23 hours a day. You were subject to these more restrictive conditions from July 2015 until September 2015, before you were transferred to Youth Detention.
77 However, as I have said in my sentence of your co-offender, Luca, 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].
78 During your subsequent remand period from December 2015 until now, you have spent much of your time on an intermediate regime, or the more restrictive management regime, where again you have been subject to significant periods of lockdown, including up to 23 hours a day. You have spent time in isolation. Over this prolonged period, you have had very little time outside. You have tried to use this time productively reading, watching television and keeping fit.
79 I accept that these conditions are onerous. However, the conditions reflected your involvement in other incidents towards other prisoners and staff. An affidavit of Assistant Commissioner Brendan Money, tendered and exhibited on the plea, outlined a number of incidents where you were formally disciplined for this type of behaviour. As you were responsible, or largely responsible for being placed in these conditions, any mitigatory benefit you get is limited.[12] In broad terms, your counsel did not take issue with this.
[12]R v Stevens [2009] VSCA 81 [18]-[23].
80 I hasten to say that you will not be punished for the incidents referred in that affidavit. You are sentenced for the offence of riot only. The matters referred to in the affidavit are only relevant to assessing the degree of credit you should receive for having served time under onerous custodial conditions. [13]
[13]Ibid [23].
81 I also take the difficult conditions into account, insofar as they may have had
a deterrent effect upon you.
Youth
82 As I have already noted, you were 22 years old at the time of the offending and are 24 now. I take into account your youthfulness and the need to allow for your rehabilitation in sentence.[14] That said, while your youth remains an important consideration and requires more weight to be given to encouraging rehabilitation than would be the case for an older offender, the nature of this offending means that the importance of youth must give some ground to the consideration of general deterrence.[15] Youth cannot be given its usual prominence in the imposition of this sentence for your offending. Additionally, your youth must be considered, in light of the fact that you have already accumulated a poor criminal history.
[14]R v Mills [1998] 4 VR 235, 242 (Batt JA).
[15]Azzopardi v The Queen (2011) 35 VR 43 [44].
Prospects of rehabilitation
83 I now turn to your prospects of rehabilitation. Unfortunately, I am not at all confident about your prospects, even for a man of your relatively young age. At best they are guarded. You have a very poor relevant criminal history. You have received a number of custodial sentences. Before that you were provided with numerous non-custodial chances in the Children’s Court, which you did not take.
84 You were on remand for outstanding matters at the time this offence was committed. These were ultimately dealt with on 17 September 2015 at the Latrobe Valley Magistrates’ Court.
85 Your counsel offered, as a contextual explanation to the offending, that you were ill-equipped to resist becoming involved in the riot because of your mental health issues, youth and difficult background. While I have made some allowance for that, no material was placed before me to show that you are probably going to be better equipped upon your release.
86 Historically, your offending has been linked to your drug use. While it has not been suggested that drugs have played a role in this offending, your prospects of rehabilitation will be generally linked to your ability to remain abstinent.
87 Mr Dodd, you do, however, have some prospects. They are not yet extinguished.
88 You have only spent a very limited amount of time out of custody since your remand in December 2014, around the time of the birth of your son. Your almost continuous time in custody, often in onerous conditions, should in theory, provide you with some incentive to change your ways. I hope that this period would have some deterrent influence upon you.
89 Your son and the ongoing support of Darren Coldebella and Lisa McMillian, who are like parents to you, are protective factors going towards your rehabilitation. You have a capacity to work. You are still relatively young. You still have an opportunity to make some positive changes and improve your circumstances. That door is closing, but it is not closed yet. Whether it does close rests with you Mr Dodd, and you alone.
90 I must impose a sentence which specifically deters you from any further offending and which also protects the community.
Parity
91 Parity is a relevant matter. A number of offenders have been sentenced for their roles in this riot. I must make due allowance for the respective criminality of each offender for their differing antecedents, personal circumstances and mitigating circumstances.
92 The prosecution directed their submissions, in particular towards your
co-offenders Luca[16] and Barnes[17], ultimately submitting that you ought to receive a greater sentence than that imposed on Barnes for the charge of riot, which was three years’ imprisonment.
[16]Luca [2016] VCC 1573.
[17]Director of Public Prosecutions v Troy Barnes [2017] VCC 447 (‘Barnes’).
93 I consider your role in the riot to be more significant that Troy Barnes. Your participation lasted some seven hours, whereas Barnes was actively involved for some four and a half hours. While your actions were similar, your confrontation with prison officers was more menacing and at a higher level than Barnes. I have already made mention of the highly disturbing occasion when, armed with a weapon, you pursued prison officers in the walkway. Without wishing to downplay the seriousness of Barnes' role, you were even more committed to promoting the chaos, mindless destruction and intimidation which so characterised this riot. While Barnes' criminal history was poor, yours is more extensive. You have received more sentences of detention and custody than Barnes and the terms have generally been more substantial than his. These matters would point towards an obviously longer sentence being imposed upon you.
94 On the other hand, there are differences in your favour. It seems your upbringing was more deprived. Barnes also received the benefit of concurrency and the direct application of the principle of totality when he was sentenced to other matters at the same time that he was sentenced for his role in the riot. You, as I have said, have lost the opportunity for a degree of concurrency with the matter where you were sentenced back in September 2015. You get the benefit of the application of the Renzella principle in relation to a significant period of unallocated pre-trial custody, is between December 2015 and March 2017. The credit you get for these matters is reflected in the sentence
I impose upon you and has resulted in a materially lower sentence. In the end, while you will still receive a longer sentence than Barnes, because of these matters, the difference in your sentence is indeed marginal and is certainly not as great as it would otherwise have been.
95 I will only touch upon Luca very briefly. Your offending is significantly more serious than Luca’s offending and your prison history is far more substantial than his. Your prospects are materially worse than Luca’s. On the other hand, where your co-offender is already serving a sentence, like Luca, I must also consider each component of the sentence imposed, including the extra period of imprisonment which he will be required to serve as a result of the riot.[18] Luca got the benefit of some concurrency with a sentence he was already serving and as I have already said, you have lost the opportunity of a degree of concurrency and again I repeat, you get the significant mitigatory benefit of the application of the Renzella and totality principles.
[18]See Postiglione v The Queen (1997) 145 ALR 408, 441.
96 Before I sentence you, I just want to formally hand down the ruling with respect to the factual disputes. I am not going to read that out.
97 MR HAYWARD: Thank you, Your Honour.
98 HIS HONOUR: Mr Dodd, would you please stand.
Sentencing
99 On the charge of riot, I convict and sentence you to three years' and two months’ imprisonment.
100 I set a non-parole period of 22 months.
101 I declare that 163 days’ imprisonment have already been served under this sentence and I direct that this fact be entered into the record and that period of time is not including today.
102 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 five years' and three months’ imprisonment, with a non-parole period of three years and six months.
103 You can be seated, Mr Dodd.
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