Director of Public Prosecutions v Durbridge

[2018] VCC 550

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00258

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARC DURBRIDGE

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 April 2018
CASE MAY BE CITED AS:	DPP v Durbridge
MEDIUM NEUTRAL CITATION:	[2018] VCC 550

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward
For the Accused	Ms K. Churchill

HIS HONOUR:

1Mark Durbridge, you have pleaded guilty to one charge of riot.  You have admitted your criminal record which is an unimpressive document detailing numerous convictions for dishonesty and drugs.

2Fourteen victim impact statements were tendered.  I have read them and taken their contents into account.  They reflect the concern Corrections staff had for their personal safety during this riot.

3The facts of the matter are set out in Exhibit 1, the prosecution opening.  I made a ruling in respect of the disputed fact.  I will not now repeat that ruling.  The other matters set out in the summary were not disputed by your counsel.  Any reader of these reasons can refer to that exhibit to place the sentence in its full factual context.

4Briefly stated, a number of protests at the Melbourne Remand Centre relating to the ban on the provision of tobacco products to visitors on 30 June 2015, approximately 200 to 300 prisoners in the Melbourne Remand Centre were in the largest riot in Victoria's correctional history.  It took 15 hours for prison officers, police and fire brigade personnel to restore order to the prison and secure all prisoners.

5By 11 pm the rioting prisoners began surrendering.  A large number of prisoners then had to be relocated to other prison facilities as large parts of the MRC were no longer operable.

6Your role in the matter is specifically set out in Part B of the prosecution opening and in the prosecution submissions on sentence in paragraph 5.  Your role included clapping your hands and pumping your fist in the air when prisoners initially breached fences, being part of the mob of rioting prisoners who advanced towards the CMC, disguising your face prior to the breach of the CMC, yelling, "Get the cunts" as prisoners attacked the CMC gates, encouraging other prisoners to enter the breached CMC and entering it yourself.

7Inside the CMC, pumping your fist in the air and shaking hands with a prisoner armed with a pole.  You entered the breach canteen and took some items from it.  you carried an oxygen tank away from the CMC.  You created a wool mask from a torn off section of another prisoner's shirt.

8You entered the breached Ballan unit and carried out from it a bucket of water.  You sprayed a fire extinguisher in the air as prisoners wrote, "We want ox" on a bedsheet.

9You entered the breached Bellbridge unit carrying a fire extinguisher towards yourself, tipping over a table tennis table.  You sprayed a fire extinguisher at a camera in the area through a yard.

10You were among a group of prisoners who entered the Billingham unit immediately after it was breached, jumping over the counter and into the officer's post and searching it and entering the office area behind it.  You raised your arm in the air as another prisoner drove past, driving a tractor.

11You were at the front of a group of prisoners going through breached fences from Area 2 into Area 3 at a stage after 4.30 pm.

12The prosecution does not allege that you were a ringleader of the riot and I agree with that.  However in my view you were an enthusiastic participant in it.

13The prosecution accepted that you did not personally use force or violence apart from what I have just read out, on property or on prison officers.

14Parity is an issue in the case and I have dealt with a number of offenders in relation to the riots.  Reference has been made to the case of Luca which was a case decided by the Chief Judge of this court on 24 October 2016.

15It sets out the relevant sentencing principles for riot.  Paragraph 15 of his reasons, the Chief Judge said:

"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 are not committed in isolation and that is the very fact that constitutes the gravity of the offence.  A person who participates in the riot bears some responsibility for the collective damage and harm caused.  However, a sentencing judge should nevertheless take into account the extent to which the offender was to blame for the offence and the part which he played in the commission of the offence".

16The Chief Judge acknowledged as I do that great weight should be given to the consideration of general deterrence for the offence of riot, so that sentences must make it less likely in the future that others will join in a riot.

17I adopted His Honour's categorisation, that denunciation of this riot at the Melbourne Remand Centre as expressed in paragraph 17 and 18 of his reasons.  His Honour said and I repeat:

"This riot was a very troubling disturbance of a very high order, measured either by the number of participants involved and the fact that the rioters acted against law enforcement or prison officers and a number of personnel required to restore order to the prison and secure the prisoners; a sense of complete anarchy on a breathtaking scale of damage and loss actually caused".

18Both parties have submitted that I should consider the issue of parity and look at sentences imposed on other rioters.  Looking at that issue, I have not delved into a minute examination by way of comparison of your behaviour with other rioters.  The cases I have looked at are useful comparisons to assist me here in my sentencing process.

19The prosecution invited me to conclude that Mr Luca's participation was more serious than yours and I accept that.  Paragraph 9 of the prosecution's written submissions sets out the prosecution's view of the similarities and differences between yourself and Mr Luca.

20The Court of Appeal has considered the issue of parity in a particular comparison with Mr Luca and the case of Kumas [2017] VSCA 287, a decision of Judge Allen of this court, and I adopt the principles set out in that as to how I should consider parity and in particular in sentencing for this riot, that I have looked at Luca in the same way that the Court of Appeal has urged me to do.

21Paragraph 39, the Court said:

"In our view, it was understandable — and entirely appropriate — that the sentencing judge would look to the sentence imposed in Luca, it being the first in the series of sentences imposed (and to be imposed) on the large number of prisoners who took part in the MRC riot.  Indeed, in order to be faithful to the principle of parity, in the circumstances the judge had no option but to do so".

22The Court of Appeal made it clear that the particular circumstances of each of the rioters is a very important factor in the sentencing process.

23The prosecution filed two written submissions and supplemented them orally.  The prosecution submitted that a combined community corrections custody order was not within the range.

24The prosecution accepted that the first limb of Verdins applies and submitted that you had guarded prospects of rehabilitation.

25Your counsel filed two written submissions and supplemented them orally and tendered a number of exhibits.  I have taken all of this material into account.

26In particular your counsel in mitigation put: (1) Although your entry for a plea of guilty was not an early plea, it still attracts a discount because it shows an acceptance of responsibility by you for your behaviour and has saved the court the time and cost of a criminal trial;

27(2) The Verdins principle applies and your counsel suggested that I should then reduce your moral culpability.  In support of that submission your counsel tendered a report, in particular, from Dr Borg, which is Exhibit D3.  It is a lengthy report and I will not refer to it in any detail except to p.6 of the report in the first paragraph headed, "Executive functioning".  The doctor said:

"In summary, Mr Durbridge demonstrated impaired capacity to reason, self-generate correct strategies, appreciate consequences and inhibit unwanted responses or behaviour".

28The paragraph headed, "Opinion", Dr Borg said it's considered that your neuropsychological profile can be predominantly accounted for by your diagnosis of Autism Spectrum Disorder.  Namely it is considered that you demonstrate features consistent with Asperger's Syndrome.  In addition, the high levels of anxiety and stress are likely to contributing to the current profile affecting your capacity to think clearly under situations of stress.

29Consequently, your underlying Asperger's Syndrome, when combined with your mental state, is considered to be the predominant factors accounting for your cognitive dysfunction;

30(3) Your counsel pointed to your background.  It is set out in the various reports that have been tendered and also in the submissions of your counsel.

31It referred to a history of trauma through your childhood and adolescence.  You were primarily raised by your mother and stepfather.  Both your father and stepfather had significant criminal ties.

32You had early learning difficulties.  You left school in Year 11.  You completed a trade certificate as a water-proofer and held a job for seven years as a roof tiler.  You have not been employed for the last four years or so.

33You have suffered a number of significant traumatic events.  You have been the victim of an assault.  You were diagnosed by Dr Cunningham with Post-Traumatic Stress Disorder in 2016.  You were in a relationship with Ebony Owen.  You have various health problems.  You have been involved with a number of services to assist you in the problems that you have;

34(4) Your counsel pointed to your current circumstances.  They are in addition to the factors set out in her submissions in court, they include:

35The list of pending matters which has been set out in the document provided to me, matters in the Magistrates' Court, all of which are listed in what is called the ARC list.  Tendered in the documents before me under D1 are 11 reports from ARC.  I have taken all of that material into account.

36(5) Your counsel told me that you have spent 157 days in pre-sentence detention;

37(6) She outlined the objective gravity of your offending in her written submissions, paragraph 22 to 25.  She asked me to look at the issue of gravity and parity.

38She submitted on the basis of all those matters, on the entirety of her submissions, that I could look at a community corrections order combined with a custodial sentence.

39I then ordered a CCO assessment report which has come back today.  You are assessed as being at a high risk of reoffending.  You have a history with Community Corrections.  You have been on a number of orders, most of which were completed successfully, two of which you have contravened.  You are currently in contravention of two orders and you have been remanded on two occasions for those orders.  It is on that basis that Corrections say you are not suitable.

40The basic principles which a court may impose a sentence of punishment are:

41(1) General deterrence, that is to try and send a message to others;

42(2) Specific deterrence, that is to send a message to you and that certainly is a factor here because of your lengthy criminal history;

43(3) Denunciation and protection of the community.   In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability, your personal circumstances and the effect your offending has had on prison officers and other staff involved in the riot.

44In sentencing you, in particular I have taken into account amongst the factors I have already mentioned:

45(1) Your plea of guilty for the reasons I have already stated, thus it will attract the appropriate discount;

46(2) Your limited role in the riot;

47(3) I have carefully looked at the issue of rehabilitation.  I am far from convinced that you have great prospects of rehabilitation, particularly given my conclusion after hearing evidence that you have a problem with telling the truth.

48(4) But I am ultimately persuaded by the fact that you are in the list to go on the ARC program and because of the numerous reports from ARC detailing that, that the possibility is a glimmer of hope that you might change your ways if appropriate supports are put in place including housing and not reoffend;

49(5) I have also taken into account the reduction in your moral culpability because the first limb in my view of Verdins applies here for the matters set out in Dr Ball's report.

50Weighing up all the matters I have to consider, I sentence you as follows:

51I sentence you to seven months imprisonment.  I put you on a two year community corrections order with conditions of treatment and rehabilitation for drug, alcohol, medical and mental health, with supervision and judicial monitoring.

52I declare pursuant to s.18(1) of the Sentencing Act that the 157 days you have already served be reckoned as part of the term of imprisonment I have just imposed.

53Pursuant to s.6AAA of the Sentencing Act, I often say it is a guess as to what sentence I would impose after a jury trial but subject to that qualification, I would have sentenced you in the order to something like a sentence of five years with a non-parole period of three.

54Are there any other orders I have to look at?

55MR HAYWARD:  No, Your Honour.

56MS CHURCHILL:  No, Your Honour.

57HIS HONOUR:  All right.  The CCO report order will be prepared and your client can sign it or not sign it as he wishes.  What is his residential address when he is released?

58MS CHURCHILL:  I will just get that, Your Honour.

59HIS HONOUR:  Sure.

60MS CHURCHILL:  If Your Honour would excuse me for a moment.

61HIS HONOUR:  Sure.

62MS CHURCHILL:  Thank you, Your Honour.  It is 1/124 Flinders Street, Thornbury.

63HIS HONOUR:  We will make a judicial monitor date three months from now.  Some poor judge can do that.

64MS CHURCHILL:  Yes, Your Honour, because seven months, I think on my calculations is about 50 ‑ ‑ ‑

65HIS HONOUR:  He will not be out of gaol by then will he?

66MS CHURCHILL:  No, I was just thinking, if Your Honour maybe listed it for a ‑ ‑ ‑

67HIS HONOUR:  I will make it six months from now.

68MS CHURCHILL:  Perhaps because then he will be out and have established hopefully some ‑ ‑ ‑

69HIS HONOUR:  Possibly be out but the Magistrates' Court ‑ ‑ ‑

70MS CHURCHILL:  He will be out on these matters, yes.  There is no remand in relation to those as I understand it but I am not appearing in those so I am not ‑ ‑ ‑

71HIS HONOUR:  I will make it six months ‑ ‑ ‑

72MS CHURCHILL:  Six months might be ‑ ‑ ‑

73HIS HONOUR: ‑ ‑ ‑ from today's date so there is some idea of what is going on.  Would you like to take that up to your client and see if he wants to sign it?

74MS CHURCHILL:  Yes, Your Honour.  Thank you, Your Honour.  I have explained each of the conditions to my client.  He agrees to the corrections order.

75HIS HONOUR:  The judicial monitor date is 26 October.  Mr Durbridge, I am signing the CCO order.  You have signed it saying you understand the effect and the conditions of the order and consent to it being made, is that correct?

76OFFENDER:  Correct, thank you.

77HIS HONOUR:  Now you understand because you have been on these orders before, that if you breach the order in any way, particularly by reoffending or breaching any of the particular conditions I have imposed, you will be brought back before the court and dealt with for the breach and also be dealt with the question of what will happen with the riot will be open again.  So it is in your interests to comply with the order.  That is all I will say, thank you.

78MS CHURCHILL:  As Your Honour pleases.

79HIS HONOUR:  Any other matters?

80COUNSEL:  No, Your Honour.

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