Director of Public Prosecutions v Heffer

[2017] VCC 1147

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00534

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL HEFFER

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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 Heffer
MEDIUM NEUTRAL CITATION:	[2017] VCC 1147

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	MR J. MILLER

HIS HONOUR: 

1Daniel Heffer, 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.  You have a considerable number of prior convictions dating back to 2002.  In particular, I note you have a number of prior convictions for serious assaults, for which you have been sentenced to community corrections orders or suspended periods of imprisonment. Furthermore, I note that on your last appearance before the Magistrates' Court prior to this offending, you were placed on a suspended sentence for contravening a community corrections order.  I shall return to the question of your criminal history and the question of the present 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 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 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. There was 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 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 $12.1m worth of costs relating to the riot, of which approximately $6.89m related to the repairs and maintenance of 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, 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 required 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 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 or 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:

·Your offending lasted from approximately midday until about 4:16 pm. Nevertheless you remained out of custody and eventually surrendered yourself to prison authorities at 7:36 pm;

·You joined in quickly as a follower as the riot gained momentum;

·You encouraged others when outside the CMC during the first breach;

·You stole items from the canteen;

·You attempted to disguise yourself during the course of the riot;

·You threw an egg whilst inside the Ballan Unit;

·You stoked the fire with a piece of furniture; and

·You momentarily jumped on the back of the tractor driven by another prisoner which was being used to destroy a fence.

8On 26 November 2015, you participated in a record of interview.  You made some admissions to participating in the riot.  When asked why you participated, you said that you became involved because of peer pressure.

9During the riot, whilst you were in the Ballan Unit, you made a telephone call to your mother.  You told the psychologist, Mr Ball, that you left a message for your mother, as you thought that you were going to be killed in the riot.  You said to the psychologist:

“A lot of us were forced by bigger blokes to go along with it.  You                    went along with it or got bashed.”

10You were remanded in custody on 2 June 2015 on unrelated matters and you were still on remand as at 30 June 2015 when the riot occurred.  You were sentenced for the offending for which you were on remand on 27 August 2015. You were charged with this offence on 24 December 2015 by summons.  On 27 December 2015, the sentence you are serving expired and you were released from custody.  On 8 June 2016, you failed to appear at the committal mention for this matter.  You handed yourself into police on 19 August 2016 and you were bailed on the charge of riot.  The matter resolved at the contested committal, which I note was submissions only, on 20 March 2017.  On 27 March 2017 at the County Court, you entered a plea of guilty to the charge of riot.  The Crown accepts that your plea was made at an early time.

11You were remanded into custody again on 24 June 2017 on unrelated matters. You have served two days pre-sentence detention, which must be taken into account.

12I have been provided with 14 victim impact statements, 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 some of 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.

13I turn now to your personal circumstances. 

14You are 35 years of age and were born in March 1982.

15You were born in New Zealand and moved to Australia when you were about two and a half years of age.

16You grew up with your two half-brothers in a family of enormous poverty and dysfunction.  You often went without food.  Your parents were both heroin addicts and they abused alcohol.  Your family moved around a lot.  You estimate that you attended about 12 schools for your primary and secondary education.

17You were subjected to physical violence and to sexual abuse.

18You commenced drinking alcohol when you were age 15 and you described dangerous levels of daily consumption.  Since that age you have used cannabis, ecstasy and methylamphetamine.

19Although your mother and father separated, when she remarried, you did no better with your step-father.

20Your greatest period of stability was when you left home at age about 14 and went to live with your grandparents in New South Wales.  They provided education, safety and certainty for you.

21You have had only a limited work history, with some in welding, automotive repairs, waste management and demolitions.  You have usually only held a job for a few months.

22You have had one significant intimate relationship and there are two children from that union.  Unfortunately, the relationship has since ended.

23Since you have been back in custody, you have received no social visitors and you have had no family support.

24Your lawyer, Mr Peterson, tendered a report from David Ball, psychologist.
Mr Ball noted that although there is no evidence of mental illness or thought disorder, you reported as being depressed and anxious.  Mr Ball estimated your IQ to fall within the dull/normal range.

25Significantly, Mr Ball reported that you are a socially detached individual with crushingly low self-esteem, who tends to perceive others as more capable and worthy.  You are more likely to be a follower, rather than a leader, often taking a passive role in social affairs.  You have few strong relationships and you are frequently lonely and isolated from others.  Mr Ball considers that you satisfy the DSM-V diagnostic criteria for persistent depressive disorder, with anxious distress and persistent major depressive episode.  He notes that you also have diagnoses of borderline and anti-social personality disorders, with which Mr Ball agrees.  He agrees with those diagnoses.  Finally, Mr Ball considers you satisfy the criteria for severe stimulant, cannabis and alcohol use disorders in early remission in a controlled environment.

26Ultimately, in Mr Ball’s opinion, you require intensive and structured drug and alcohol relapse prevention treatment, supervision and monitoring in the community and treatment aimed at your severe personality deficits.

Gravity of offending and Your role in it

27I turn now to the gravity of the offending and your role in it.

28The 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;

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

29The 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 now 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.

30Great 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 aimed directly at law enforcement, that is, both in respect of the laws made regarding your detainment and then in direct and violent opposition to those officers who were 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 a ring leader or involved in the planning or organisation of the riot.  I therefore sentence you on the basis that your participation was not premeditated.

35The Crown submits that your role was below that of the offender I have already mentioned, Jonathan Luca.  Mr Peterson, in the course of his very careful  submissions, submits that your offending falls in a range similar to that of the offender, Davis or that of Galvan, so between the two.  Ultimately, in his submissions, Mr Henderson on behalf of the OPP agreed that your role probably fell somewhere between the two.  Ultimately I am satisfied that those two offenders provide the range within which you should be sentenced.  In forming that view, I take confirmation from the report of Mr Ball, who considers that you were more likely to be a follower than a leader, often taking a passive role in social affairs and also from your observations to Mr Ball in the course of your interview, that a lot of you were forced by bigger blokes to do what you did.  You were in fear of being bashed if you did not.

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 other offenders and
I must take into account also, so far as they exist, current sentencing principles and practices.  Overall, I am satisfied that the objective seriousness of your offending lies below Luca and is indeed approximate to the range provided by Davis and Galvan.

37Of course, there can never be a perfectly 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.

Plea of Guilty - Utilitarian Effect

38I note that your plea of guilty was entered at an early 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.

39The sentence I impose will take into account your early plea of guilty and the fact that it facilitates the course of justice.

Lockdown / hardship

40The Crown tendered the affidavit of Jennifer Hosking.  After the riots, you were initially placed in 23 hour lockdown at the MRC.  The time you were able to spend out of your cell increased through August, but when you were transferred to Port Phillip Prison in September 2015, it seems that you then reverted to
22 on 23 hour lockdown until your release at the expiration of your sentence on 27 December 2015.

41The 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 take broad account of the added burden that you faced during this period.

Prospects for rehabilitation

42Mr Peterson conceded that your prospects for rehabilitation remained guarded, given your criminal history and subsequent offending, which saw you back in custody again on 18 June.

43I consider that your prospects for rehabilitation are guarded.  The Crown points out that you continued to offend after the rioting conduct.  I consider that you must address your long-standing drug addiction problems if you are to have reasonable prospects for your rehabilitation.

44I also consider that you will need assistance upon your release from custody through the structure of parole.

45I 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 will provide a firm foundation for your reintegration back into the community upon the expiration of your sentence, if parole is granted. 

46Mr Heffer, it will be necessary for you to work hard whilst you are still in prison to co-operate with prison authorities and to ensure that the parole period is granted.  After that, it is you that must resolve to remain drug-free and 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 with the assistance of the authorities.

Totality

47On the question of totality, I note that in the 25 months since the offending, you have spent approximately eight months in custody.

48In an ideal world, if you had been sentenced shortly after 30 June 2015, you would have had the opportunity for some period of concurrency.  That opportunity has now been lost.

49Of that time, you are credited only with two days of pre-sentence detention for this offending.  The two months you have spent on remand since your return to custody in June are credited towards the offending for which you were arrested. In determining the appropriate sentence to impose on you, I have taken into account the need to apply the principle of totality to achieve a sentence which recognises the overall period you have spent in custody since the offending.  In this instance, however, the principle of totality can have only a very limited effect.

Sentence

50On the charge of riot, you are convicted and sentenced to 18 months' imprisonment.

51I order that you serve a non-parole period of eight months.

52I declare the period of two days pre-sentence detention reckoned as already served, that is excluding today.

53But for your plea of guilty, I would have imposed a sentence of two years and nine months, with one year and nine months to serve.

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