Director of Public Prosecutions v Hutchinson
[2017] VCC 302
•24 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-01904
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER HUTCHINSON |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 March 2017 |
| DATE OF SENTENCE: | 24 March 2017 |
| CASE MAY BE CITED AS: | DPP v Hutchinson |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 302 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr Manning | OPP |
| For the Accused | Mr Kozlowski | Papa and Hughes Lawyers |
HIS HONOUR:
1 Peter Hutchinson, you have pleaded guilty to one charge of Riot. The maximum penalty for this offence is ten years' imprisonment.
2 On 24 October 2016, the Chief Judge of this court sentenced a co-offender Johnathon Luca for his role in the riot. I adopt the remarks His Honour made regarding the overview of events that occurred on 30 June 2015.
"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."
3 I 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 recorded actions span the period 11.57 am to 3:40 pm.
· You left your cell at 11:57 to join the other prisoners in the outdoor yard.
· Prisoners congregated near the point where the three yards converged. Some prisoners kicked the fences between the three yards. Eventually the fences were breached and you walked from Area 1 through the damaged fence to Area 2.
· A little later, you were with a crowd of prisoners walking towards the CMC. You used an item of clothing to fashion a type of balaclava to conceal your identity.
· Prisoners forced the gates to the CMC and you entered the CMC with the first wave of prisoners.
· You did not participate in the destruction of the CMC. You walked through to the canteen area where you took possession of two poles and started carrying them about.
· You roamed around the canteen and the CMC area and, at some stage, put down the poles and started carrying a fire extinguisher and breathing apparatus. You picked up a case of coca cola and returned to the Area 3 yard.
· At 12.55 pm the Ballan Unit was breached. You briefly entered that unit.
· At 12.56 you approached the end of Area 2 Raceway where you started pushing a prison meal tug with the assistance of other prisoners. The tug was directed into the gateway and acted as a barricade. You still had your face concealed and you were wearing the breathing apparatus on your back.
· Between 1 and 1:30 pm prisoners forced entry into various units. You entered a number of those units. In the Burnside and Chartwell Units you were seen to rummage around the desk area of the Officer’s post. You were also seen outside the Chartwell Unit passing items through a cell window and smashing the glass of the entrance door.
· At different times you were seen encouraging other prisoners in their behaviour.
· At 2 pm you encouraged prisoner Kelly to ram a tractor into the fences between Areas 3 and 4.
· Kelly drove the tractor into the entrance door of the Chartwell Unit. You were the first prisoner to enter the unit after it was breached. You were carrying a pole and you picked up a riot shield, which you proceeded to carry around.
· A little later Kelly drove the tractor back to the Area 3 yard. You handed the pole and shield to the prisoners on the tractor. Prisoners loaded a trailer with rocks and attached the trailer to the tractor. It was then driven through to Area 3 and you held the gate open for the driver to go through from the raceway.
· At 2.51 prisoner Richardson lit a fire in the Officer’s Post of the Attwood Unit, which he left to burn. At 3:02 you entered the unit and saw the fire. You filled two buckets with water and threw them on the fire. The fire was not doused and as prison officers entered the unit, you fled.
· You were next seen at the area between the Attwood and Albion Units where there was some negotiation between prison officers and prisoners. When these negotiations broke down, prisoners started throwing rocks at the officers. You were still wearing the breathing apparatus and you were at the front of the crowd. You picked up tear gas canisters and threw them back at the staff before moving to Area 3.
· At 3.40 you re-entered the Chartwell Unit and removed the hinges off the door of a cell to release the prisoner in that cell.
· Later that day, you were detained and secured in a holding yard behind the Exford unit. You remained for a period of time but when the officers had to attend to other matters, you jumped over a wire fence and left the area. You ran off to Area 3 ignoring requests from staff to get down on the ground.
4 I have been provided with 14 victim impact statements from prison officers at the MRC. The riot had a major impact on their lives. Several have suffered from sleeplessness and flashbacks. Work relationships and family relationships have been adversely affected. Many no longer feel safe in their workplace. In short, the psychological impact on the lives of these officers has been considerable.
5 In the case of Luca the Chief Judge 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 prison settings 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."
6 It is not disputed that this riot was a serious example of such an offence. The riot involved a large number of prisoners, it persisted over many hours, it caused millions of dollars damage, it was a vigorous attack on the proper operation of the prison, law enforcement officers were confronted and had items thrown at them, and it generated a high level of fear and alarm.
7 I now move to an analysis of your specific role in the offending. I accept that you were not one of those involved in the planning or organizing of the riot. Your contribution was confined to the acts and the period of time that I have already identified. The riot continued beyond this time.
8 However, I find that while you did not play the role of a ringleader, you did play a significant role. You were with the group of prisoners who gathered at the junction of Areas 1, 2 and 3 around midday. The riot gained momentum from this time. You endeavoured to avoid identification by covering your face. Your involvement covered some three and a half hours and corresponds to the period when the riot was in its acute phase. Your actions included encouraging others, entering various units, stealing property, wearing breathing apparatus, assisting in the barricading of the gateway to Area 2, encouraging co-offender Kelly to drive a tractor through the fence line between Areas 3 and 4, throwing tear gas canisters towards prison staff, releasing a prisoner in the Chartwell unit by removing the hinges off the door of a cell and leaving an area where you had been detained. In summary, you were an enthusiastic participant in the riot.
9 Your counsel placed a great deal of reliance on your behaviour at around 3 pm when you entered the Attwood Unit and tried to douse a fire that had been started by prisoner Richardson. Whilst I acknowledge the appropriateness of that behaviour it is unfortunate that you did not surrender yourself at that time. Instead you fled the scene and continued your involvement in the riot.
10 You have a significant criminal history. It commences in 2004. It includes many appearances in the Magistrates’ Court and some appearances in the County Court. Your prior offending covers the full gambit of criminal misbehaviour. You have been the recipient of every type of sentencing order. Many of those orders were designed to support you in the community and address your drug abuse problems. In these circumstances, specific deterrence and community protection are relevant sentencing considerations.
11 There are subsequent matters that are relevant to your personal circumstances. On 5 February 2016 you were sentenced at the Sunshine Magistrates’ Court for a large number of offences. These were the matters for which you were being held on remand in June 2015. You were sentenced to 228 days imprisonment. The Court declared 229 days pre-sentence detention. You were released from custody. You next appeared at the Orange Court on 13 May 2016 where you received a suspended sentence for larceny. On 29 June 2016 you were remanded in custody in Victoria for other offences. I am told that those offences are still pending in the Magistrates’ Court.
12 You are 30 years old.
13 Your family circumstances were very unsettled. Your parents separated when you were 18 months old and you remained with your mother. You had no further contact with your father. Your mother remarried when you were seven years old. The family moved to Queensland. Your stepfather was retrenched and this led to a deterioration in the relationship. Your stepfather became abusive and violent. When you were 14 years old the relationship broke down and you returned to Melbourne with your mother. You then lived with your grandmother.
14 The disruption in your family circumstances carried into your schooling where your behaviour was poor. You were expelled from Northside Christian School in Bundoora. You then moved to Debney Park Secondary College. Your behaviour did not improve. You left school when you were 15 years old and you commenced an apprenticeship in cabinet making. You did not complete this.
15 I was told that you started using cannabis in your teenage years and then moved to heroin. By the time you were 17, your mother had become very concerned at your erratic, irrational and disrespectful behaviour. You left home when you were 18.
16 Your first appearance in the Magistrates’ Court in December 2004 was for offences that included possess cannabis, possess amphetamine and possess heroin. You were placed on a Community Corrections Order (CCO) with conditions that were designed to support you to address your drug problem. Since then you have found it impossible to break from your drug addiction. The addiction has profoundly affected your life.
17 Efforts have been made over the years to support you in the community. I have already mentioned the Community Corrections Order. In September 2007, Her Honour Judge Millane released you on an Intensive Corrections Order (ICO) to participate in the residential Teen Challenge Drug Rehabilitation Program. You were to be involved in that program for 12 months. In breach proceedings in July 2008, Her Honour varied the order to allow you to reside at Odyssey House. The order was cancelled in 2009. The drug use continued and the offending continued.
18 You are fortunate that your mother has continued to offer you her support. You are able to live with her on your release from prison. You also had the support of your partner from 2009 until her tragic death on 14 April 2016. You told your counsel that you have had enough of drugs and that you do not want to go back to them upon your release. I have no doubt that courts have been told that before.
19 I am very guarded about your prospects of rehabilitation. You have a major drug problem. Past attempts to defeat that problem have been unsuccessful. Notwithstanding the ongoing support of your mother, you have continued to relapse and continued to offend.
20 There are matters in mitigation.
21 You entered an early plea of guilty. The plea is indicative of remorse. No witnesses have been required to give evidence and your plea has saved the community the expense associated with a criminal trial. You will be given credit for all these matters.
22 After the riot you were held for a number of months in lockdown. This means that you experienced hardship that was not experienced by all prisoners. However, as the Chief Judge said in the case of Luca – “the benefit here should be reduced by the fact that some of this hardship was, at least, initially
self-inflicted in that it was immediately caused by the riot in which you participated. The credit or benefit you get for this is a question of degree.”
23 Parity is a relevant matter. In dealing with this issue I must make due allowance for the respective criminality of each offender and I must make due allowance for their differing antecedents, personal circumstances and mitigating circumstances. I must also consider the actual punishment it appears likely the offenders in suggested comparison will undergo.[1]
[1] See Postiglione v R (1997) 145 ALR 408 at 441.
24 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. The prosecution submitted that notwithstanding the differences in the specific actions of you and Luca, you were more culpable than him. Whilst I accept that your involvement extended over a longer time than Luca’s, you do deserve some credit for your efforts in trying to extinguish the fire in the Attwood Unit. I assess your level of culpability as being similar to Luca’s.
25 Luca’s personal circumstances are stronger than yours. He was a young offender, had limited prior history and fair prospects for rehabilitation. However, since the commission of the offence you have been dealt with for other matters and received a sentence of 228 days. This is relevant because you completed that sentence in February 2016 and, with the present matter having taken some time to resolve, you have lost the prospect of any concurrency with the sentence that I will impose. There must be some moderation of sentence for this reason. I note that Luca, who was already undergoing a sentence when sentenced by the Chief Judge, obtained the benefit of some concurrency and this needs to be weighed in the balance when I am considering your circumstances.
26 Your counsel submitted that the appropriate order in your case was a CCO or a combined sentence. The seriousness of the offending precludes the making of either of those orders.
27 Will you stand, please?
28 You are convicted and sentenced to 27 months' imprisonment with a minimum term of 15 months before being eligible for release on parole. I declare 268 days pre-sentence detention.
29 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to four years' imprisonment with a minimum term of two years and nine months.
30 You can be seated there.
31 Is there anything else, gentlemen?
32 COUNSEL: No, Your Honour.
33 HIS HONOUR: You can remove the prisoner, thank you.
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