Director of Public Prosecutions v Harris

[2017] VCC 1475

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02187

DIRECTOR OF PUBLIC PROSECUTIONS

v

BROCK NORMAN HARRIS

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 October 2017
CASE MAY BE CITED AS:	DPP v Harris
MEDIUM NEUTRAL CITATION:	[2017] VCC 1475

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 K. Gilligan with Mr G. Hayward
For the Accused	Mr C. Pearson

Pages 1 - 7

 

 

HIS HONOUR: 

1Brock Harris, you have pleaded guilty to one charge of riot and have admitted your criminal history which is a substantial document if I might say so.

2Fourteen impact statements have been tendered.  Although not read, however, I have taken their contents into account.  They are from Corrections staff and they reflect the concern that the staff had for their personal safety during this riot. 

3Briefly stated, the facts of the matter are that after a number of protests at the Melbourne Remand Centre relating to the ban on the provision of tobacco products on 30 June 2015, approximately 200 to 300 prisoners at the Melbourne Remand Centre were involved in the largest riot in Victoria's correctional history.

4It took 15 hours for police officers, fire brigade personnel and Corrections to restore order to secure the prison.  By 11 pm, the rioting prisoners began surrendering.  A large number of prisoners had to be relocated to other prison facilities as a large part of the Melbourne Remand Centre was no longer operable. 

5Your role in the matter is specifically set out in part B of the prosecution opening.  That opening is agreed to by your counsel and fully sets out all the facts in this matter.  Any reader of these reasons can refer to that exhibit to place this sentence in its full factual context.  

6Your specific offending included being part of a mob of prisoners who entered the CMC before it was smashed, entering the CMC after it had been breached, entering the canteen and consuming items taken from it, carrying items including sunglasses and a soft drink taken from the canteen back to the
Area 3 yard, being present while other prisoners forced their way into the Ballan unit and entering it soon after it was breached, entering the officer's post in the Ballan unit, placing a bucket near a makeshift barricade, entering the officer's post of the breached Burnside unit and using a phone, jogging next to an armed and disguised prisoner then waving "Come over here" gestures, extending your arm towards a prisoner rioting on a prison tractor.

7The prosecution's written submissions analysed those factual matters of your behaviour with those of a co-offender, Luca, who was dealt with in this court by the Chief Judge, the reasons at DPP v Luca [2016] VCC 1573. The prosecution's submission that upon an analysis of your behaviour with that of Mr Luca did have a lower gravity of seriousness and your behaviour could be categorised as a low participation in the riot.

8In his sentencing reasons in the case of Luca, the Chief Judge comprehensively set out the relevant legal principles in relation to sentencing for riot.  Those principles which are accepted by your counsel in effect mean that basically you are not only responsible for what you specifically did in the riot, but you take responsibility for what occurred in the riot as a general proposition. 

9In 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 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." 

10I accept those propositions. 

11The Chief Judge went on to acknowledge as I do that great weight should be given to the consideration of general deterrence for the offence of riot so that sentences make it less likely in the future that others will join in and follow to participate in a riot. 

12I adopt His Honour's characterisation and denunciation of this riot at the Melbourne Remand Centre as expressed in paragraph 17 and 18 of his reasons. 

13His Honour said and I repeat,

"[T]his 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." 

14As counsel are aware I have dealt with now a number of co-offenders in relation to this riot and although I have not delved into a minute examination of behaviour by way of comparison of your behaviour and background with those rioters, the other matters that I have considered are useful comparisons to assist me here in my sentencing process.  I always have to consider the sentencing principle of parity and I tried to do that, considering your own personal circumstances. 

15In mitigation, your counsel relied on:

16(1), his written submissions;

17(2), his oral submissions;

18(3), your plea of guilty which was not at the earliest opportunity but nevertheless has saved the court the cost and expense of a jury trial and as an acceptance of responsibility by you for your behaviour and I have given it the appropriate discount. 

19(4), he submitted I should consider the principles of totality.  Since the riot, you have served approximately 18 to 19 months in custody.  In this matter, you have heard 31 days of pre-sentence detention. Also, you have served 29 days of dead time.  That is you have served that time when you were not released when you should have been.

20Of course, you will be given a s.18 declaration in respect of the 31 days of pre-sentence detention but I have taken into account the 29 days of dead time, particularly in setting the non-parole period.

21(5), your counsel submitted that you have made positive progress whilst in custody and tendered a number of matters.  He tendered a letter from you in which you set out your thinking about what occurred and the remorse you have for the offending and what you were trying to do to rehabilitate yourself.  A number of certificates were set out which show the various courses that you have been involved in to try and assist you in your rehabilitation. 

22There was also a letter from Samuel Rossan, a psychologist with the Caraniche Drug and Alcohol Services at the Barwon Prison.  In that, your involvement in the drug and alcohol programs that have been run by Caraniche at Barwon was set out and they included attending 15 counselling sessions.  You have expressed an interest in continuing drug and alcohol counselling either in prison or in the community. 

23(6), your counsel tendered a neuropsychologist report from Dr Loretta Evans.  As I understand it, that report was prepared for a possible assessment in relation to whether you were fit to plead in relation to other matters.  It is a very comprehensive report and it sets out your personal history which I will not go into in any detail except to say that you had a disrupted childhood through the separation of your parents, you suffered sexual abuse at the hands of an older cousin.  The family at one stage emigrated to Tonga and then returned.  Your mother has been ill for quite some time, having been diagnosed with leukaemia and kidney failure. 

24You were doing all right at school until the death of your stepfather.  You, after, were not attending school and getting into trouble.  At the age of 15 or thereabouts, you decided not to continue with your school work but work as a factory hand and you have had brief periods of unskilled work, however, you were last employed about ten years ago. 

25You have had a number of relationships, one of them produced a son. 

26Your problem which will come as no surprise to most people who are in the criminal justice system arises out of your addiction to alcohol and drugs.  You began to drink at the age of ten.  By the age of 26, you were drinking up to three bottles of whiskey a day.  You started to use cannabis at age 12.  You have been using amphetamines, experimented with heroin.  You had an itinerate lifestyle and you have been admitted to various hospitals as set out in the report at the heading, "Medical, Psychiatric and Forensic History".

27A neuropsychological assessment was made.  You were assessed to be in the low to average intelligence range.  You expressed remorse, regret and shame for your offending in relation to the matters you were being interviewed about.  The opinion was that surprisingly - the words of the doctor, not mine - you do not produce a neuropsychological profile consistent with an alcohol related brain injury. 

28You had detailed a history of a traumatic and highly disrupted upbringing characterised by loss, sexual abuse and physical abuse as well as the onset of alcohol and cannabis use during critical periods of brain maturation. 

29Again, unsurprisingly, the report at the last page - p.9 - sets out a number of strategies that would assist you to do something about your problems.  In your criminal history, it is apparent that you have been on community corrections orders and intensive correction order and none of that seems to have worked unfortunately.

30(7), your counsel submitted that your offending was at a low level and as I have already stated, I accept that. 

31(8), he analysed your criminal history and informed me through looking at it that between the years of 2001 and 2005, you had no criminal history.  He said that the most serious of your matters was the armed robbery in 1999 and he contrasted that with the series of other offences that you have committed.  It is a long list of offending, whether serious or not in my view.  

32(9), he submitted because of what you have been doing in gaol, you had prospects of rehabilitation.

33(10), he set out your personal background which I will not repeat as it is fully set out in the neuropsychological report and the written submissions.  He submitted that I could consider a combination sentence of a custodial sentence and a community corrections order. 

34I have taken into account all of the submissions made by both parties, considered all the matters put by your counsel.  The basic purposes for which a court may impose a sentence or punishment are general deterrence - that is to try and send a message to others not to act in this way.  Specific deterrence also has a role to play here because of your criminal history - that is to try and get into your mind not to reoffend.  I have expressed my denunciation of the offending and I must take into account protection of the community. 

35In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and the effect it has had upon the prison officers and other staff involved in the riot.  Because of the weight I have given to general deterrence, it is my view that a combined sentence and community corrections order is not within the range of the sentencing options available to me because of the serious nature of the offending. 

36As to assessing your prospects of rehabilitation, I find it hard to be positive given your criminal history, however, I am cautiously encouraged by the steps that you have taken whilst you were in custody to actively seek to rehabilitate yourself.  You do not need me to tell you that if you do not do something about your life, it will pass you by and you will be in and out of gaol forever. 

37Just one thought for you, every time you commit a criminal act, it affects someone else.  So it is not just about you, it is about the victims even if it is just a theft or what you might consider to be a minor matter to obtain funds for your drug addiction.  It affects someone else.

38Taking all those factors into account, I fix a head sentence of 15 months and I fix a non-parole period of six months. I declare the time of 31 days you have already served to be part of the sentence I have just imposed. I declare pursuant to s.6AAA of the Sentencing Act that if you proceeded to trial and you were convicted by a jury, you would be sentenced to a term of imprisonment of four years with a non-parole period of two and a half years or thereabouts.  Are there any other orders I need to consider, Mr Hayward?  Mr Pearson?

39MR HAYWARD:  No, Your Honour.  

40MR PEARSON:  No, Your Honour.  Not on my part.

41HIS HONOUR:  All right.  Thanks, Mr Harris.  I wish you well.

42OFFENDER:  Thanks.

43HIS HONOUR:  I will just wait for that order to be prepared and off we go.  Thank you.  Adjourn the court till 10 o'clock tomorrow.

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