Director of Public Prosecutions v Galvin

[2017] VCC 241

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01873

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS GALVIN

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2017
DATE OF SENTENCE:	14 March 2017
CASE MAY BE CITED AS:	DPP v Galvin
MEDIUM NEUTRAL CITATION:	[2017] VCC 241

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Combes	OPP
For the Accused	Mr L. Dean	Slades & Parsons

HIS HONOUR:

1Nicholas Galvin, you have pleaded guilty to one charge of riot.  The maximum penalty for this offence is 10 years' imprisonment.

2On 24 October 2016, His Honour Chief Judge Kidd sentenced a co-offender Johnathon Luca for the offence of riot.  I adopt the remarks His Honour made regarding the overview of the events that occurred on 30 June 2015.  His Honour said this:

"On 30 June 2015, 200-300 prisoners at the MRC were involved in the largest riot in Victoria's correctional history.  Evidence indicated the protest by prisoners on 30 June 2015 was planned with the intent of disrupting the routine of the prison, to force authorities to suspend, amend or reverse the 'no smoking' policy.  A total smoking ban was due to commence in Victorian prisons on 1 July 2015.  Peaceful protests were held by prisoners at the MRC in the days leading up to the riot. 

During the riot fences were breached, prison vehicles (including the use of a tractor) were used to cause damage to gates and fences, the Central Movement Control (CMC) was stormed twice, the canteen was looted, and multiple accommodation and non-accommodation units were significantly damaged.  That damage included the use of makeshift weapons to smash windows, damage to equipment and fixtures inside the units, and the lighting of fires both inside and outside the units. 

It took 15 hours for prison officers, police and Fire Brigade personnel to restore order to the prison and secure all prisoners.  The riot appeared to have been in an acute state for a shorter period of time:  from approximately 11.40 am when some prisoners began congregating and chanting for tobacco through to the late afternoon when the Central Movement Control (CMC) was breached for a second time.  It had essentially ceased by 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 injuries, such as recurring nightmares and ongoing stress, as a direct result of the threats and fear inflicted by the prisoners. 

A large number of the prisoners then had to be relocated after the riot to other prison facilities due to large parts of the MRC no longer being operable. 

As at 11 April 2016 the Department of Justice had incurred $12.1 million worth of costs relating to the riot, of which approximately $6.89 million related to repairs and maintenance of the MRC. 

In all, 102 offenders have been charged in relation to the riot."

3I now turn to your specific role as outlined in Part B of the prosecution opening.  Your actions were captured on CCTV footage and I make the following points about your offending: 

·Your actions cover the period 11.45 am to 2.06 pm. 

·At 11.45 am you were with a group of prisoners gathered at the junction of areas 1, 2 and 3 who refused to return to their cells after a routine muster. 

·Around midday, fences dividing these areas were breached and you were part of a group of prisoners who walked towards the CMC.  You did not disguise yourself at this point. 

·Some prisoners then breached the CMC.  You were not in the first wave of prisoners to rush at the CMC gates and did not participate in the destruction of the CMC. 

·At 12.18pm you walked through the CMC to the external area near the canteen.  You attempted to conceal your identity at this time. 

·At 12.35 you walked back through the CMC. 

·At 12.52 you were walking around the basketball court in area 2, eating food that had been stolen from the canteen. 

·At approximately 1.01 a group of prisoners forced entry into the Attwood Unit.  At 1.12 you entered the unit, walked into the officers' post and put on a pair of latex gloves, which you had taken from your pocket.  You looked through items inside the post and appeared to take a small unidentified item.  

·At 2.02 you were with a group of prisoners watching prisoner Kelly knock down a fence using a tractor.  You pointed at a section of the fence and indicated where he should target his attack. 

·At 2.06 you were in the Burnside Unit where you rummaged around the officers' post.

4I have been provided with 14 victim impact statements.  The victims are prison officers at the MRC.  In his remarks in the case of Luca, the Chief Judge summarised the impact of the riot on the victims in a way that is consistent with what I have read.  After noting that the riot had a major impact on these officers, the Chief Judge went on to say:

"Several have reported difficulties in both their professional and personal lives.  Some have experienced flashbacks, which have disturbed their sleep.  The stress has affected their satisfaction at work, and has 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."

5His Honour also detailed the legal principles that attach to the offence of riot.  I adopt his comments: 

"Riot involves an assembly of people intending to assist each other, by force if necessary, in pursuit of a common purpose; 

The offence of riot is a very serious offence.  It derives its gravity from the simple fact that the persons concerned were acting in numbers and using those numbers to achieve their purpose.  It involves public alarm because it is currently or potentially dangerous.  It usually carries with it an inherent danger of injury to persons or property or both; 

The level of violence used (in relation to persons or property) and the scale of the violence are factors relevant to sentence; 

In assessing the culpability of an individual participant, it is wrong to take the acts of the individual participant in isolation.  That is because the acts of the individual were not committed in isolation and this is the very fact that constitutes the gravity of the offence.  A person who participates in a riot bears some responsibility for the collective damage and harm caused.  The sentencing judge should nevertheless take into account the extent to which the offender was to blame for the offence, and the part which he had played in the commission of the offence; 

Great weight should be given to the consideration of general deterrence for the offence of riot.  The sentences must make it less likely in the future that others will follow in joining in a riot; 

The offence of riot is more serious where the rioters act against law enforcement officers in the execution of their duties; 

The fact that the riot occurred in a prison setting confirms the importance of general deterrence.  Even though the authorities which support the proposition that deterrence assumes particular importance where offending takes place in 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."

6I also adopt the Chief Judge's assessment of the gravity of the overall riot.  Again I quote:

"As to the gravity of the overall riot, 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 caused. 

While minor physical injuries 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."

7I now move to an assessment of your role in the offending.  I accept that you were not one of those involved in the planning or organizing of the riot.  In addition, your contribution was confined to the acts and to the period of time I have already identified.  The riot continued beyond this time.

8Whilst I find that you did not play the role of a ringleader in the riot, you did join in the riot in its early stages and continued to participate for a period of just over two hours.  Your actions included walking through the CMC and endeavouring to conceal your identity, entering the Attwood Unit and rummaging through the officers' post, offering direction and encouragement to prisoner Kelly as he attacked the fence with a tractor, and walking through the Burnside Unit and rummaging through the officers' post.

9Mr Galvin, you have a criminal history that commences in 2009.  In 2009 you were placed on a community corrections order at the Bendigo Magistrates' Court for offences of recklessly cause injury and theft from a shop.  You failed to comply with that order and on 15 June 2010 you were placed on a longer community corrections order.  You did comply with that order.

10In August 2013, you appeared at the Bendigo Magistrates' Court and received a three month suspended jail term for offences that included recklessly cause injury and intentionally damage property.

11You breached that order and on 18 July 2014 you were sentenced at Bendigo to three months' imprisonment.  On the same day you were placed on a 12 months' community corrections order for a large number of offences.  On 8 May 2015 you were sentenced at Bendigo for driving and drug offences and again released on a community corrections order.  On 26 June 2015 you were dealt with at Bendigo for breaching these two community corrections orders.  You were also dealt with for the offence of traffic and possess drug of dependence.  You were sentenced to an aggregate period of four months' imprisonment.

12Given this history, specific deterrence and protection of the community are relevant sentencing considerations.

13There are subsequent matters that are relevant to your personal circumstances.  At the time you committed the offence of riot you were undergoing the sentence of 26 June 2015.  That sentence concluded on 18 October 2015 and you were released. 

14On 24 February 2016 you were remanded in custody in relation to further offences.  On 23 June 2016 you were sentenced to 18 months' imprisonment on those matters.  A minimum term of eight months was fixed before you would be eligible for release on parole.

15I have mentioned the subsequent offending and the associated orders because they are relevant to the issue of totality of sentence.  I will come back to this matter a little later in these remarks.

16You are 28 years old.  You grew up in Bendigo in a fairly large family where it was a struggle for your parents to make ends meet.  Your father was a truck driver and your counsel said that he had issues with drug use.  When you were 12 years old or thereabouts he was diagnosed with bowel cancer.  I was told that for the next three years you tended to fend for yourself as your mother spent much of her time caring for him.

17You struggled at school.  Mr Warren Simmons, a consulting psychologist, states in his report that you are essentially illiterate.  By the time you arrived at secondary school you were well behind the other students and your behaviour was poor.  You effectively left school during Year 8.  You spent a year at home doing very little before moving to Seaford and obtaining work in a furniture factory.  Up until 2013 you had a reasonable work history in various unskilled jobs.

18Alcohol was a problem for you between the ages of 15 and 19.  When you were 23 years old, and shortly after your brother died from a drug overdose, you commenced using methylamphetamine.  You became dependent very quickly.  Inevitably, criminal offending followed.  In 2014 and 2015 you were placed on community corrections orders that were designed to assist you address your addiction.  They were not successful.  You told Mr Simmons that when you were released from prison in October 2015, you relapsed into drug use almost immediately.  You were using drugs up until the time of your remand in February 2016.

19Your counsel told me that you have insight into the problems drugs have caused you.  He submitted that your current sentence, being the first lengthy sentence you have received, has caused you to reflect on your past behaviour and has provided you with a determination to cease your drug use.  In support of this submission, he referred me to the 24-hour drug and alcohol treatment program that you completed in custody and the negative urine screens from 24 July, 7 October and 9 November 2016.  Your counsel submits that your prospects of rehabilitation can be described as reasonable.

20Mr Galvin, such an assessment is overly optimistic.  Undertaking a 24-hour course and providing three negative screens are a good start but they are to be measured against your history of offending and your significant substance abuse problem.  I am guarded about your prospects of rehabilitation.  There have been a number of attempts in the past to address your substance abuse problems and they have been unsuccessful.  Past community corrections orders have been unable to break the pattern of addiction and offending.  Given the nature of this offending and your past failures on community corrections orders, I am unable to accede to your counsel's submission that you be released on a combined order of imprisonment and CCO.  The appropriate order in your case is a head sentence with a non-parole period.

21In determining your sentence, there are matters in mitigation that must be given appropriate weight.

22First, you have entered an early plea of guilty.  The plea is an indication of your remorse.  Your plea has saved the need for witnesses to be called to give evidence and avoided the cost and expense associated with a criminal trial.  You will be given credit for all these matters.

23Secondly, the principle of totality is highly relevant in this case.  You are currently serving the sentence imposed on 23 June 2016.  You have been in custody since February 2016.  When you were sentenced in June you were given credit for pre-sentence detention.  A non-parole period of eight months was fixed.  In normal circumstances you would have been eligible for release on parole in October 2016.  However, because this matter had not been resolved, you were not considered for parole.  This means that you are now nearly 13 months into your sentence.  The parole period ends on 22 August 2017. 

24Parity is also a relevant matter.  There are a large number of prisoners charged with this offence.  Very few have been dealt with thus far.  I have already referred to the finalised case of Luca.  He was an enthusiastic participant who actively caused damage, armed himself, encouraged others and drove a "tug" vehicle.  He was described to me as a serious mid-range offender.  You are clearly at a lower level than him.  The prosecutor described your behaviour as being at the low level of the mid-range.  I agree with that.  In considering your sentence I recognise that Luca had the benefit of some matters in mitigation that are not available to you.  However, the matter of totality looms large as a mitigating consideration in your case.

25Mr Galvin, will you stand please.

26Mr Galvin, you are sentenced to 18 months' imprisonment.  I fix a minimum term of eight months before you will be eligible for release on parole.  This order is to be served concurrently with the sentence you are presently undergoing.

27If you had pleaded not guilty and been found guilty after trial, I would have sentenced you to two years and nine months' imprisonment with a one year and nine month minimum term.

28You can be seated there.  Is there anything else, gentlemen?

29MR COMBES:  No, Your Honour

30MR DEAN:  Nothing else, Your Honour.

31HIS HONOUR:  Thank you, the prisoner can be removed.

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