Director of Public Prosecutions v Gillard

[2017] VCC 1097

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-02081

DIRECTOR OF PUBLIC PROSECUTIONS

v

GLEN GILLARD

---

JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 August 2017
CASE MAY BE CITED AS:	DPP v Gillard
MEDIUM NEUTRAL CITATION:	[2017] VCC 1097

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Gilligan
For the Accused	Ms P. Smith

HIS HONOUR: 

1Glen Gillard, 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 criminal history is extensive.  
I note that all of your matters have previously been dealt with in the Magistrates' Court.  During the course of the plea, in March or April, it was necessary for me to have regard to your subsequent offending.  I note that on 8 March 2017, you were sentenced to a period of 16 months' imprisonment for offences committed after the riot offence.  Taking into account your pre-sentence detention, you served that sentence until 6 August 2017.  I shall return to the question of your criminal history and that sentence later in these 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 then of your participation in it.  On 24 October 2016, His Honour Chief Judge Kidd sentenced your co-offender, Jonathan Luca, for his participation in the same riot.  I use the term "co-offender" loosely.  I adopt from those sentencing remarks, the overview of the 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 in Victorian prisons on
           1 July 2015.  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, damage 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 to 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 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 the repairs and maintenance of the MRC.  In                all, 102 offenders have been charged in relation to the riot."

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;

·    Used 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 already 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 and indirect costs which go beyond prisoner movements and relocations and extend to the administrative burden 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:

·First, after the routine muster, you moved as part of the group of prisoners through Area 1 and into the yard of Area 2;

·Then, you were at the rear of the crowd of prisoners whilst the breach was effected, but then moved as one of the first prisoners through into the CMC;

oI note that you did not take part in the destruction of property in the CMC;

·Then you went into the canteen and took food, which was handed out to prisoners.  You also took a pair of sunglasses which you started to wear;

·You tossed a small item over a prison wall.  You could not see over the wall.  There were prison officers on the other side of the wall.  I conclude that you did not act maliciously in this respect;

·Then for a period of time, you disguised your face whilst keeping sunglasses on and you did so by putting your shirt over your head.  You told your counsel, this was for the purpose of minimising the effects of the teargas.  Whether this is so, it also served to disguise your face.  
I do note however, that for much of the time your face was not disguised and you are readily identifiable;

·Then finally you entered the Atwood unit and went into the offices area. Whilst in the Atwood unit, you stole some food from the kitchen.  You were still visible as being part of the group who had not been contained at 8:41 pm.

8On 15 July 2015, in a telephone call to a family member, you made observations about the damage and disruption caused to the prison by the rioter’s actions. You were honest in what you said, but you were neither boastful nor remorseful.

9You declined to participate in a record of interview.

10You had been remanded in custody on 11 December 2014 and were still on remand as at 30 June 2015 when the riot occurred.  You were charged with this offence on 21 December 2015 by summons.  On 6 January 2016, you were released from custody after completing the sentence imposed.  On 7 April 2016, you were again arrested and remanded for offences that occurred after your release in January 2016.  On 24 November 2016, you pleaded guilty to the charge of riot at committal mention.  On 8 March 2017, you pleaded guilty to an array of offences in the Magistrates Court, for which you received the sentence of 16 months.  That is the sentence that was completed on 6 August 2017. 

11I have been provided with 14 victim impact statements as Exhibit B, from prison officers at the MRC.  None of the injuries or difficulties they have suffered are directly attributable to your conduct.  Many, however, 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 were born in Melbourne in November 1977 and are 39 years old.  You have three siblings, but you have no present contact with them.  Your parents separated when you were about five years old.  Your father was a heavy drinker and worked in construction.  He remarried and has a second family.  Your mother is retired from her work as a factory hand.  You still have contact with her.

14Your childhood was relatively normal.  Neither of your parents had any particular problems or addictions and you were not subjected to any form of abuse.

15You left school at age 16, after finishing Year 10.  You worked on casual factory work for about four years and then with your father in the fire protection industry for about 18 months.  You essentially have not worked since you were aged 22.

16You have a son, Bailey, aged six.  He lives with your ex-partner's uncle and aunt.  Through your mother, you are able to maintain regular contact with your son.

17You began binge drinking alcohol at age 13, until the age of 20, but you have been able to moderate your use of alcohol since then.  You commenced smoking cannabis on a daily basis at age 11, until you were 20.  Since the age of 17, you commenced using heroin and at times have spent up to $1,000 a day feeding your addiction.  You have been placed on a methadone dose for the last ten years, but you are still having considerable difficulty overcoming your addiction.

18It seems, as I have said, that you are in regular telephone contact with your mother.  Your mother also ensures that you speak to your son on a regular basis.  In this way, it is apparent that you have support available to you whilst you serve your sentence and upon your eventual release from prison.

19I was told that you have some difficulty with your hands at the moment.  You fear that you are developing arthritis, although as at the date of the previous plea, it has not been diagnosed.  You are waiting to see a doctor.

20This has affected your ability to undertake any work or manual courses whilst in prison.  I have been told that you have not completed any courses whilst in prison this time.

The Gravity of the Offending, Role & Parity

21Returning to the gravity of the offending, your role and the question of parity.  The very 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 a common purpose of disrupting the prison;

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

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

22The 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 people, 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.

23Great 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.

24The 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."[1]

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

25The actions of you all were directly aimed at the law enforcement officers, both in respect of the laws made regarding your detainment and in direct and violent opposition to those 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.

26The 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.

27It is not suggested that you were involved in the planning or organisation of the riot, nor were you a ringleader.  I therefore sentence you on the basis that your participation was not premeditated.

28The Crown submits that your role was less than that of the accused in Luca.  Your counsel submitted that it was agreed to by the Crown that your offending circumstances and background are more similar to that in the case of Galvan. Whilst your participation in the riot was for a greater period than that in Luca,
I accept that your counsel’s submission that for much of the time you simply seem to be wandering around.  The peak intensity of your activity seems to have lasted from about midday until just after 2.15 pm.  Although you are seen entering units after that time, you seem to do so without causing any particular disturbance.  Further, your role can be distinguished from others, as there is no suggestion that you damaged property, carried a weapon, were involved in the second breach of the CMC, drove vehicles, removed cell doors or gave instructions to others.

Parity

29In sentencing you for this offence, I must have regard to the overall consequences of the riot and to 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 falls just below that of Galvin.  The sentence I will impose on you will reflect my conclusion that your role was less than both Galvin and Luca.  

Plea of Guilty - Utilitarian Effect

30I note your plea of guilty was entered at the earliest opportunity.  The parties agree that 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.  I consider that there is a utilitarian benefit to your plea in this case.  The sentence I impose will take into account your initial early plea of guilty and the fact that it facilitates the course of justice.

31Despite your counsel’s submission on your plea in March and then again before me today, I did not then and I do not now consider that the plea is attended by any particular remorse.  In particular, I note that you did not readily plead guilty in the first place and then made an unsuccessful application to change your plea at the date on which I was initially going to sentence you, 26 April 2017.

32At best therefore, the plea of guilty may be taken to indicate a modicum of insight into your wrongdoing on that day.

Lockdown

33As to lockdown, I also note that after the riots, you spent approximately four to five months in 23 hour a day lockdown at MRC and then again at Marngoneet, from November until your release in January 2016.  This added considerably to the burden of your imprisonment.  Whilst it is true that you were locked down because of your participation in the riot, it was not universal to all participants.
I therefore take into account the added burden that you faced during this period.

Totality/Renzella

34I will say something briefly about totality principles.  If you had been sentenced at an earlier time, you would have almost certainly received a period of concurrency in your sentences.  You have known since December 2015 that you face the prospect of another term of imprisonment for this offending and notwithstanding your early guilty plea, this matter, through no fault of yours or through no fault of the authorities, initially took about 21 months from the date of offending to get to court for the first listing of your plea in March 2017.

35I note that you have only a few days' pre-sentence detention available, some four days I am told, as all your PSD was taken into account in relation to the sentence imposed on 8 March 2017.  I note that you have been in custody since April 2016 and but for a short period of time in the community, you have been in custody since December 2014.  

36I note also that by making the application to change your plea, you lost the benefit of having the sentence for this matter run concurrently, at least in part, with the sentence you are then serving, which expired on 6 August 2017. Notwithstanding this was a situation of your own making, I consider that I am compelled to take into account that period of imprisonment served, in assessing the appropriate period to impose on you in this case.

37I stress that in the very unusual circumstances of this case, the period of imprisonment which I fix will be moderated to take into account the overall period for which you have been in prison and that which you must still serve.

Submission for a combined sentence / CCO

38I turn to the submission made on the original plea for a combined sentence with a CCO.  Mr Malik, on your behalf, submitted that I should have you assessed for a CCO, to be combined with a period of imprisonment for this offending. Essentially, Mr Malik submitted that, given your history as outlined to me, it is apparent that your offending behaviour results from your long-standing addiction to drugs.  Further, your offending has been exacerbated by your
long-term homelessness.  Mr Malik then pointed to your criminal history sheet to indicate that, for the most part, you have been given aggregate straight sentences of imprisonment.  You have therefore had no opportunity for structure to assist your reintegration back into society upon your release from imprisonment.

39Further, Mr Malik submitted that you fear the imposition of a non-parole period, as you feel certain you will not be granted parole.  Whilst a future decision of the parole board is not a matter I can take into account, Mr Malik submitted that a combined sentence with CCO would meet the difficulties that you face.  Finally in this respect, Mr Malik submitted that you will be able to live with your mother upon your release from prison this time.

40Ms. Overend, on behalf of the OPP, responded to this submission.  By reference to your subsequent history, she pointed out that you were placed on a CCO when you were sentenced for offending on 23 October 2015.  The CCO was to commence upon your release from prison on 6 January 2016.  I asked for and was provided with the breach report.  It is apparent that the Community Corrections officers went to great lengths to try and get you to commence the order.  Between 6 January 2016 and 25 February 2016, despite very many calls, texts and discussions you had with the Community Corrections officers, you managed to only attend on one occasion for your induction.  The Community Corrections officers gave you many opportunities and even at your request, moved your attendance location.  Unfortunately, none of it worked.  The report also notes that you have had your parole cancelled on two occasions.

41It is apparent from your extensive prior criminal history that your prospects for rehabilitation are at best, guarded.

42I consider that the offending in this instance and your role in it, must be met by a term of imprisonment.  I have decided, in light of your relatively recent history with the Office of Corrections, not to have you assessed for a further community corrections order.

43Whilst I appreciate that you fear that you will not be granted parole,
I nevertheless intend to provide you with an opportunity to be placed on parole. 

44Mr Gillard, it will be necessary for you to work hard whilst you are in prison to co-operate with the prison authorities and to ensure that a parole period is granted.  You will need to secure your mother’s agreement to take you back into her home, so that you have a certain place to live.  After that, it is you that must resolve to remain drug-free and to start making changes to your lifestyle. If you do that and you are granted parole, then the structure of the parole system and the allocation of a parole officer will provide you with the opportunity to reintegrate back into society upon your release from prison, with the assistance of the authorities.

45Now I will just ask you to stand up please. 

46On the charge of riot, you are convicted and sentenced to a term of 15 months' imprisonment. 

47I direct that you serve a non-parole period of seven months before you are eligible for parole. 

48I emphasise that there are extraordinary, if not unique, circumstances in your case which compelled me to moderate the head sentence and non-parole period which I imposed. 

49I declare the period of four days pre-sentence detention, excluding today, as already served. 

50The s.6AAA declaration is, that but for the plea of guilty and all things being equal, I would have imposed a sentence of two years and seven months, with a non-parole period of one year and eight months. 

51Mr Gillard, your sentence therefore is a sentence of 15 months, with a non-parole period of seven months.  You have served four days of that sentence.