Director of Public Prosecutions v Fabriek

[2017] VCC 1145

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-02052

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE FABRIEK

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 August 2017
CASE MAY BE CITED AS:	DPP v Fabriek
MEDIUM NEUTRAL CITATION:	[2017] VCC 1145

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 J. Hayward
For the Accused	Ms K. Ljubicic

HIS HONOUR: 

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

2You have admitted your prior convictions.  Your prior criminal history up to the point of the riot is relatively limited.  However, since the date of the riot, you have presented before the Magistrates' Court on six subsequent occasions in respect to a large number of contraventions of family violence intervention orders. Furthermore, you have spent the entire period between 13 March 2015 and 18 April 2017, in and out of prison, with only  relatively short periods of liberty. It is necessary to return, in detail, to the nature of your offending later in these sentencing remarks.

3The Crown tendered a summary of prosecution opening as Exhibit A, which provided an extensive overview of the course of the riot in general and of your participation in it.  On 24 October 2016, His Honour Chief Judge Kidd sentenced another offender, Jonathan Luca, for his participation in the same riot.  I adopt from the sentencing remarks of the Chief Judge, the overview of events that occurred on 30 June 2015:

"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 on 1 July 2015 in Victorian prisons. Peaceful protests were to occur.

During the riot, fences were breached, prison vehicles, including the use of
a tractor, were used to cause damage to gates and fences.  The Central Movement Control, 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, to cause damage to equipment and fixtures inside the units and the lighting of fires, both inside and outside the units.

It took 15 hours for prison officers, police and fire brigade personnel to restore order to the prison and secure all prisoners. The riot appeared to have been in an acute state for a shorter period of time, from approximately 11:40 am when some prisoners began congregating and chanting for tobacco, through to the late-afternoon when the Central Movement Control was breached for a second time. It had essentially ceased by 11 pm.

Prison officers and public servants were forced to flee the grounds for their own safety. A number of prison officers reported minor physical injuries, including inhalation of chemical agents which were thrown back at them by prisoners. Other minor injuries occurred during physical clashes with rioting prisoners at the CMC. Some staff reported psychological issues, such as recurring nightmares and ongoing stress as a direct result of the threats and fear inflicted by the prisoners. A large number of the prisoners then had to be relocated after the riot to other prison facilities due to large parts of the MRC no longer being operable.

As at 11 April 2016, the Department of Justice had incurred $12.1m worth of costs relating to the riot, of which approximately $6.89m related to the repairs and maintenance to the MRC. In all, 102 offenders have been charged in relation to the riot."[1]

[1]DPP v Luca [2016] VCC 1573 at [4] – [10].

4The net effect and scale of the riot was vast.  The riot itself was marked by prisoners:

·Tearing down and breaching security fences;

·Disguising their faces to avoid identification and detection;

·Using metal bars and other items as weapons;

·Looting the canteen and property of prison officers;

·Throwing items at prison officers who were trying to restore order;

·Engaging in widespread property damage;

·Using prison vehicles to damage property; and

·Threatening and taunting prison officers.

5For their part, the prison officers:

·Were forced, along with public servants and contractors, to flee from various parts of the prison;

·Repelled the attacks with riot gear and tear gas;

·Were forced to use personal protective equipment and breathing apparatus;

·Suffered physical injuries through chemical inhalation and through some of the interaction with prisoners; and

·Suffered psychological injuries to varying degrees which, for some staff members, are still ongoing.

6I have said something of the direct cost of repairs and maintenance caused to the State by the actions in which you participated.  On top of these were the many hidden or indirect costs which go beyond prisoner movements and relocations and extend to the administrative burden that the riot caused. Furthermore, there was a huge operation undertaken to identify those involved in the offending.

7Your offending is outlined in the summary of prosecution opening.  It was, in part, captured on the prison’s CCTV footage.  A summary of your role is as follows;

·Your involvement in the matter commence shortly after 11:45 am and continued until about 6:09 pm;

·You went towards the CMC with other prisoners.  At this time your face was concealed.  After 12:23 pm when the CMC was breached for the first time, you entered the CMC and were observed punching a mounted control panel. You walked through the CMC, you picked up a chair and hit an internal wall;

·You entered the canteen and took a can of soft drink;

·Leaving the canteen, you threw eggs in Area 3;

·You were amongst the crowd that confronted prison officers within the CMC. You were still disguised with your windcheater over your head, wearing sunglasses and you threw eggs at the CMC;

·You entered the Ballan unit and went into the officers' area;

·You entered the Burnside unit and within the officers' post made
a telephone call to your mother;

·You threw an item and a jacket onto a fire at 1:36 pm, in the area near the raceway.  You instructed your counsel that the purpose of putting the jacket on the fire, was to help put it out;

·At 1:53 pm, you picked up a fire extinguisher and went into the Area 2 gateway. You walked towards Area 1, but did not attempt to put out the fire I have just referred to;

·In Area 4, you took over a water hose and sprayed it towards the CMC;

·At  approximately 2:07 pm, you entered the Chartwell Unit and were amongst the first of a group of prisoners to damage that unit;

·At about 2:35, you re-entered the officers' post at the Ballan Unit;

·Sometime after 3 o'clock, you were in the Area 3 yard and helped attach a trailer containing rocks and debris to a buggy;

·At 3:40 pm, you rode in a motorised vehicle that was being driven by another inmate and got out when it stopped outside the recreation building;

·At 4:13 pm, you were present at a fire burning outside the Burnside Unit in the Area 3 yard.  You were carrying a breathing apparatus and were observed throwing an item onto the fire;

·You moved away from the Burnside Unit  You started to wear the mask for the breathing apparatus and you carried a tennis racket;

·You were present for the second breach of the CMC.  You were standing at the front of the crowd, still holding the tennis racket;

·You assisted the group of prisoners by pushing the motorised buggy into the CMC gates;

·Once the CMC gates were breached, you entered and picked up a water cooler container;

·As prison officers deployed teargas and forced inmates to retreat into the
Area 3 yard, you were part of the retreating group.  The group threw rocks and missiles at the CMC;

·At approximately 6:09 pm, you were present in the Area 3 yard and threw a couple of items towards the CMC.

8On 12 July 2015, you admitted to your mother that you had called her from the officers’ console during the riot.  You told her that you expected to be charged for some wrongdoing, but denied that you had done anything wrong.  In a further telephone call to your mother on 16 July, you denied doing any damage during the riot.

9On 9 December 2015, you participated in a record of interview.  You made comprehensive admissions to participating in the riot.  You told police that you had disguised your face, that you threw eggs, that you found sunglasses and picked them up,  that you called your mother, that you had held the firehose, that you knew it was wrong to go behind the console, that you threw a brick towards officers who were between the Albion and Atwood units, that you put paper items on the fire outside the Bellbridge Unit and that you were armed with the tennis racket to hit back teargas canisters.  You told police that you regretted being involved in the riot altogether and that you were following the pack.  It is to your credit that you made such comprehensive admissions.  Indeed, you admitted throwing a brick at officers, when it is not an allegation that was put to you or that is relied upon by the prosecution as part of the case against you.

10You had been remanded in custody on 5 June 2015.  You were transferred to the MRC on 10 June 2015 and were a mainstream prisoner when the riot occurred.  You were charged on summons with this offending on 21 December 2015 and at the committal mention on 3 June 2016, your lawyers made an application for summary jurisdiction.  It was apparent that you were willing to plead guilty to this offending from that date.  The magistrate reserved the decision on the application for summary jurisdiction. Summary jurisdiction was refused on 21 November 2016.  On that date, you entered a plea of guilty. The matters were adjourned to the County Court, where you were arraigned and entered a plea on 8 December 2016.  You failed to appear at the plea hearing on 21 March 2017.  The matter came back before me on 9 August 2017, when the plea was heard.

11I have been provided with 14 victim impact statements, which were tendered as Exhibit B, from prison officers at the MRC.  It is not alleged that any of the injuries or difficulties they have suffered are directly attributable to your conduct. Nevertheless, I do note that on more than one occasion, you were part of
a group of prisoners that directly confronted prison officers.  Of those who provided victim impact statements, many have suffered ongoing difficulties in their professional and personal lives.  It is apparent that the stressful effects of the riot will be felt by them to varying degrees for some time to come.  It is apparent that the actions of you all have taken a toll on staff who were exposed to your criminal acts.

12I turn now to your personal circumstances. 

13You are 24 years of age and you were born in April 1993.

14You are the only child of your mother and father’s union, but you have two
step-siblings through your step-father.

15Your parents separated when you were two years old.  Your father was a violent man and a drug user who was abusive towards you and your mother.  He had spent time in prison during your childhood.  Your relationship with your father remains poor.  Your mother re-partnered.  Unfortunately, your step-father is also a violent man and a drug user.

16You attended school at Melton Secondary College until the end of Year 10.  You had been a talented footballer and then an AFL football umpire.

17After leaving school, you completed some TAFE courses and you worked for
a period at a greyhound track.

18The main focus of the plea made on your behalf, was that at 20 years of age, you are met and formed a relationship with Ashley Russell.  She was pregnant when you met her and you happily accepted the child as your own.  Regrettably though, the relationship has been described as "dysfunctional and toxic".

19At some point very early in the relationship, you were both introduced to the drug ice.  You became immediately addicted and that, you instructed, was when the trouble began.  In August 2014, you appeared before the Magistrates' Court for the first time.  At the same time, DHS became involved in the welfare of the young child.

20With only one or two exceptions, all of your prior and subsequent convictions relate to this tumultuous relationship.  Your early adult life in this relationship has been marked by the mutual use of the drug ice, fighting over the end of the relationship and access to the young child, Chase.  I was told that Ashley has been similarly charged with a great number of contraventions of family violence orders.  The child, Chase, now lives with his grandmother and it appears that Ashley’s drug problem has not yet resolved.

21Your mother and step-brother, Anthony, were present in court for your plea hearing.  You enjoy a close relationship with both of them and when at liberty, you will live with your mother.  It is to her home that you will return upon your eventual release from custody in relation to this matter.

22It is sufficient to demonstrate the toxicity of your relationship with Ashley Russell by simply referring to the periods that you have served, either on remand or by sentence in the last two and a half years.  They are as follows:

·13 March to 30 April 2015;

·5 June 2015  to 27 August 2015;

·8 December 2015 to 25 February 2016;

·29 March to 12 May 2016;

·27 July 2016  to 12 August 2016;

·11 October 2016 to 15 November 2016;

·5 December 2016 to 20 December 2016;

·18 April 2017 to the present time.

23Each of these periods of imprisonment is attributable to the contravention of family violence intervention order, except for the period from 18 May of this year, as you are now on remand for this offending.

24Of course, your offending on 30 June 2015 was not attributed to either your relationship with Ashley, or the use of the drug, ice.  I note from the affidavit of Jennifer Hosking, which was tendered by the prosecution on the plea without objection from your counsel, that your time in prison through 2016 was not incident-free.  Against that, I note that no adverse action was taken against you.

25I was provided with the psychological report, dated 27 April 2016, of Carla Lechner. It is unfortunate that no more up-to-date material was provided.  Ms Lechner’s report focused on your own family relationship, on that with Ashley and your drug use.  You told Ms Lechner that you believed that the relationship was going well until you both became addicted to ice.  You told Ms Lechner that you thought that your relationship with Ashley and the young boy replicated your own family experience.

26You told Ms Lechner that you felt depressed about the repetitive nature of your behaviour.  Although Ms Lechner considered in April 2016 that you presented with symptoms of depression, it is apparent that she considered the first problem that you must deal with in your life, is your addiction and constant relapse back to using methylamphetamines.  Further, she considered that whilst you are capable of reflecting on the impact of your behaviour on yourself and others, you are easily overwhelmed by social and emotional factors that cloud your judgement and decision-making.  In addition to drug rehabilitation,
Ms Lechner considers that you require both couples and personal counselling. Although Ms Lechner’s report is now 16 months old, it seems that the problems she identified have simply compounded in the intervening period.

27You failed to appear at this matter on 21 March 2017.  I was told by your counsel that you were disappointed that an application to vary your bail and adjourn the matter to enable you to attend Odyssey House was refused.  A consequence of this, is that you have lost the opportunity for any period of concurrency and I am told that you have only 96 days pre-sentence detention.

Gravity of offending and Your role in it

28I turn to the gravity of the offending and your role in it. 

29The serious nature of the offence to which you have pleaded guilty can be seen from simply looking at the elements set out in the charge on the indictment.  That is that:

·You assembled together with the intent to carry out the common purpose of disrupting the prison;

·You assisted one another by force against anyone opposed to you in your execution of that purpose; and

·You executed that purpose in a violent manner, such as to cause alarm to another person of reasonable firmness and courage.

30The wording of the charge to which you have pleaded guilty makes it clear that it would be wrong for me to simply look at your conduct and participation in isolation.  Rather, your acts were not committed in isolation, but were part of the acts of 200 to 300, where over 100 of you have been charged with this criminal offending.  By your participation in the riot, you must bear some responsibility for the collective damage and harm that was caused. Nevertheless, I will take into account the extent to which you were morally culpable for your offending and for the part that you played in the commission of the overall offence.

Great weight must be given to the principle of general deterrence and denunciation for the offence of riot.  The sentence I impose upon you must serve as a warning to make it less likely in the future that others will act in this way.

31The offending in this case is made more serious by the fact that you and your co-offenders, as prisoners, acted against law enforcement officers in the execution of their duties.   As Chief Judge Kidd said in the case of Luca at [15]:

“The courts cannot permit the law of the jungle to take hold in prisons”.[2]

[2] See also De Castres v The Queen; Kent v The Queen [2011] VSCA 377 at [1], [10], [26]-[36].

32The actions of you all were directly aimed at the law enforcement officers, that is, both in respect of the laws that were being made regarding your detainment and in direct and violent opposition to those officers tasked with restoring peace and order to the prison.  In this instance therefore, the prison setting in which the riot took place confirms the importance of general deterrence.  In other words, my assessment of the overall riot is that it was a grave offence indeed.

33The principles of deterrence and denunciation must be met.  The community expects those who attempt to instigate "mob rule" by violent and frightening means, will be met by stern punishment.

34It is not suggested that you were involved in the planning or organisation of the riot, nor were not a ringleader.  I therefore sentence you on the basis that your participation was not premeditated.

35The Crown submits that your role was more significant than that of the accused in Luca.  I accept your role in the offending was indeed more significant than that of Luca.  The period of time for which you were involved in the rioting conduct, the extent of your conduct and the nature and level of your activities, all exceed those of Luca.

Parity

36In sentencing you for this offence, I must have regard to the overall consequences of the riot and the principle of equal justice; that is, I must take into account the sentences imposed on co-offenders and I must take into account also, so far as they exist, current sentencing principles.  Overall, I am satisfied that the objective seriousness of your offending lies above that of Luca. The sentence I impose must reflect this.   

37You were, at the time of the offending, and remain, a young man.  Luca had limited prior convictions and a serious subsequent conviction for which he received a term of imprisonment.  Your prior convictions at the time of this offence were also relatively limited.  Of course, there can never be an equal comparison or matching between offenders.  I note that I must balance out all of the different factors in arriving at the sentence that I will impose in this matter.

38It was suggested on your plea that a difference between you and Luca was that you were a smoker and that smoking helped you to deal with your imprisonment and enforced abstinence from drugs.  In the absence of any medical, psychological or other material, it is hard to take this submission any further.  In any event, your reliance on cigarettes cannot be used to justify or in any way mitigate your actions on 30 June 2015.

Plea of Guilty - Utilitarian Effect

39I note your plea of guilty was entered at the earliest opportunity.  Further, it appears that you indicated your plea at or near the first available opportunity. You should receive credit for the objective utilitarian benefit through the saving of time and resources that would have been associated with running
a committal or a contested trial.

40I further consider that there is some indication of remorse.  As I have previously mentioned, you made comprehensive admissions in your record of interview. You did not seek to distance yourself from, or minimise your role in the offending.

41The sentence that I impose will take into account your early plea of guilty and the fact that it facilitates the course of justice.

Lockdown / hardship

42The Crown tendered the affidavit of Jennifer Hosking.  I note that after the riots, you were initially placed in the 23 hour lockdown at the MRC.  For another month until your release on 27 August, you remained on stringent conditions.

43The lockdown regime added considerably to the burden of your imprisonment. Whilst it is true that you were in lockdown because of your participation in the riot, I shall still take some account of the added burden that you faced during this period.

Prospects for rehabilitation

44As to your prospects for rehabilitation, I say that, as a relatively young man,
I accept that you still have some prospects for rehabilitation.  It is apparent however, that your prospects of rehabilitation are entirely dependent on your resolve to overcome your addiction to ice and you have to successfully sort out the issues between you and your ex-partner.

45I accept that the singular nature of your subsequent offending demonstrates that you will need assistance, support and structure on your release from prison, if you are to confront these issues and successfully reintegrate back into the community.

46I consider that the offending in this instance and your role in it must be met by a term of imprisonment.  I have decided that the structure of a period of parole would provide a firm foundation for your reintegration back into the community on expiration of your sentence.

47Now, Mr Fabriek, it will be necessary for you to work hard whilst you are still in prison to co-operate with the prison authorities and to ensure that the parole period is granted.  After that, it is you that has to remain drug-free and to start making changes to your lifestyle.  If you do that and if you are granted parole, then the structure of the parole system and the allocation of a parole officer will provide you with an opportunity to reintegrate back into society upon your release from prison.

Totality

48Now, I need to say something about totality.  In the submissions made on your behalf, it was pointed out that you have served just under 300 days of imprisonment since this offending. If my calculation is right, you have probably served over 340 days since 13 March 2015.  I will take into broad account the considerable amount of time you have spent in custody in the sentence that
I impose upon you.

Deprived childhood

49As to your deprived childhood, your counsel referred me to the High Court case of Bugmy.  Specifically, Ms Smith submitted that the nature of your upbringing, together with your subsequent and related drug addiction, cannot be ignored.  It is no small coincidence that your father and step-father present as violent men with significant drug addictions.  The relevance of your upbringing is all the more poignant when I take into account what it is that Ms Lechner had to say about you.  I consider there should be some moderation of your sentence made to take into account your upbringing.

Sentence

50On the charge of riot, you are convicted and sentenced to 21 months' imprisonment. 

51I direct that you serve a non-parole period of 12 months before you are eligible for parole. 

52I declare the period of 96 days, excluding today, as pre-sentence detention already served. 

53But for the plea of guilty and all things being equal, I would have imposed
a sentence of three years and nine months, with a non-parole period of two years and nine months. 

54It is a sentence of 21 months, 12 months to serve and 96 days come off the sentence. 

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