Director of Public Prosecutions v Martin
[2017] VCC 256
•20 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-01792
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT MARTIN |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 February 2017 |
| DATE OF SENTENCE: | 20 March 2017 |
| CASE MAY BE CITED AS: | DPP v Martin |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 256 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr K. Gilligan | OPP |
| For the Accused | Mr C. Morgan | Clancy Solicitors |
HIS HONOUR:
1 Scott Martin, 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 this riot.[1] I adopt the remarks His Honour made regarding the overview of the events that occurred on 30 June 2015.
"On 30 June 2015 200 to 300 prisoners at the Metropolitan Remand Centre (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 CMC was breached for a second time. It had essentially ceased by 11pm.
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."
[1]Jonathon Luca [2016] VCC 1573
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 actions span the period 11.40 am to 4.05 pm.
· At 11.40 am you were with a group of prisoners who gathered at the junction of Areas 1, 2 and 3.
· After midday the fences that divided these areas were breached, and at 12.16 pm you walked towards the CMC. You removed your shirt and tied it around your head to conceal your identity.
· At 12.23 pm the CMC was breached and at 12.24 you attempted to damage a control box in that building.
· At 12.36 pm you left the canteen with a bag of stolen items. Those items were later identified as soft drinks and chocolate blocks.
· At 12.55 pm you and a group of prisoners gathered on the basketball court and then moved to the gate leading to the CMC walkway. The prisoners then started forcing entry into the accommodation units located within Areas 1, 2 and 3, where staff had locked themselves for safety. The prison officers had to evacuate the units via rear access doors, narrowly escaping contact with the prisoners.
· At 1.13 pm you pulled over a filing cabinet and cupboard at the officer’s post area in the Attwood Unit.
· At 1.39 pm you picked up a metal pole and struck the CCTV camera in the Billingham Unit. You disabled the camera.
· At 1.55 pm you helped to pull apart fence panels that had been damaged by vehicles driven by other prisoners. You were still armed with a pole.
· At around 2 pm a co-offender drove a tractor into the entrance of the Chartwell Unit in Area 4. A short time later you were the third person to enter the unit. You used the pole in your possession to smash items in the unit.
· At 2.13 pm you were in Area 3 fuelling a fire that had been started by other prisoners.
· At 3:08 pm you were with a group of prisoners in the Area 1 yard. You were still armed with a pole. The prisoners were throwing gas canisters back at the prison officers, as well as arming themselves.
· At 4:05 pm you were sitting next to a fire in Area 3. You used the pole to stoke the fire whilst other prisoners added more items to the fire.
4 The police interviewed you on 15 October 2015. You minimised your involvement in the offending.
5 I have been provided with 13 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.
6 In Luca the Chief Judge detailed the legal principles that attach to the offence of riot. It is appropriate to quote 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 sentence 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."
7 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' worth of 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.
8 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 to the period of time I have already identified. The riot continued beyond this time.
9 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 before midday; the riot gained momentum from this time; you endeavoured to avoid identification by covering your face; you were active over a period of four hours and 25 minutes. Your participation covers the period when the riot was in its most acute phase. Your actions included looting the canteen, damaging property in various units, arming yourself with a pole and fuelling fires.
10 You have a significant criminal history. It commences in 1989. 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. In 2002 you were sentenced in the Shepparton County Court to three years' imprisonment for offences of false imprisonment and aggravated burglary. You have been the recipient of every type of sentencing order. In these circumstances specific deterrence and community protection are highly relevant sentencing considerations.
11 At the time you committed the present offence you were on remand for offending that took place on 15 January 2015. I need to spend time explaining how that matter proceeded. You pleaded not guilty to various charges at a committal hearing in June 2015. You made an offer to plead after the committal. The offer was accepted in September 2015.
12 On 6 November 2015 Her Honour Judge Harbison sentenced you in the Wodonga County Court for offences of aggravated burglary, causing injury recklessly and two related summary offences of unlawful assault. You received a total effective sentence of 18 months' imprisonment followed by a two year Community Corrections Order (CCO). Her Honour made a declaration of 295 days pre-sentence detention. When Judge Harbison sentenced you, you had not been charged with the present offence. Her Honour made it clear in her sentencing remarks that her sentence was a very lenient sentence. Your preparedness to give evidence against your co-offender was a powerful factor on sentence. Her Honour said the sentence was “justifiable only by reason of your co-operation with the prosecution of your co-offender.” Her Honour gave considerable weight to the fact that because of your agreement to give evidence against your co-offender your sentence would be served in protective custody.
13 You were released from prison in July 2016 and commenced your CCO. Since then you have done very well. You moved from the Wodonga area, where you had a long history of offending, to Frankston. Your compliance on the CCO was good. You were engaging regularly with medical professionals to address your mental health and drug use issues. You were participating in an opiate replacement program and there was a tentative but promising re-engagement with your family. Importantly, you had not re-offended. Given your past criminal record these matters are very much to your credit.
14 I have detailed this history because it is relevant to the application of the principle of totality and to an assessment of your prospects for rehabilitation. I will speak further about these matters shortly.
15 I conclude this part of my remarks by noting that you pleaded guilty to the present offence at a committal mention on 28 July 2016. On 9 February 2017 you pleaded guilty on arraignment before me and I remanded you for sentence to today’s date.
16 You are 47 years old. You were born and raised in a farming family in North East Victoria. You have two older brothers and one younger brother. As a young man you worked on the farm and completed a farming apprenticeship course. You became estranged from your family in the late 1980s, when you entered into a relationship that they did not support.
17 You and your partner lived in Benalla and you had two children. You were hard working during this time. When this relationship ended in 2000 you were left without your children and the house. Your counsel said that you then sought refuge in drugs and alcohol. Your drug problems escalated when you suffered a serious neck injury in a car accident and you were prescribed opiate based medications. Your regular subsequent court appearances for drug offending, and other offending, show the magnitude of your drug abuse problem.
18 There are a number of matters in mitigation.
19 You entered an early plea of guilty. I accept that 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.
20 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.”
21 In considering this matter it is also relevant that Judge Harbison gave you a benefit for your time in lockdown when she sentenced you.
22 I spoke earlier about the sentence you received on 6 November 2015. You completed the imprisonment period of that order in July 2016. The principle of totality is relevant. I must acknowledge that you lost the prospect of any concurrency with that earlier sentence.
23 It is also of consequence that you complied with your CCO for over a period of seven months prior to being remanded for sentence. There was no further offending, and this distinguishes you from some of your co-offenders.[2]
[2] For example, see the cases of Lachlan Bright and Nicholas Galvin.
24 I agree with your counsel’s submission that there are positive signs of rehabilitation. You pleaded guilty to the charges before Judge Harbison. You agreed to give evidence against your co-offender and you did, in fact, do so. Her Honour noted in her sentencing remarks that as far as your rehabilitation was concerned you seemed to have “turned the corner”. After your release from prison in July 2016 you relocated from an area where you had a history of offending, addressed your health and drug use issues and responded positively on your CCO. There was no further offending. I accept that you made good progress towards re-building your life.
25 I accept that your recent experience in giving evidence against a co-offender will mean that imprisonment will be more onerous for you than it would otherwise have been. I take this into account in framing my sentence.
26 Parity is 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. The prosecution submitted that on an overall assessment of your respective behaviours you are more culpable than Luca. I agree with that assessment. In addition, Luca was a young offender and his future prospects were described as "fair". He had a limited criminal history.
27 However, it is highly relevant in your case that since the riot you have been sentenced to a term of imprisonment and then been released on a CCO. These matters are important in two ways. First, over 20 months has elapsed since the riot and you have lost the opportunity for any concurrency with the sentence imposed by Judge Harbison. I note that the application of the totality principle in Luca’s case effectively resulted in eight months of his head sentence being made concurrent with the sentence he was undergoing. It also required the fixing of a new non-parole period. Secondly, your relocation from Wodonga and your strong performance on the CCO are important indicators of your potential for rehabilitation. I accept that returning to custody in circumstances where you had responded positively on the CCO would have been extremely difficult for you. These matters are highly significant.
28 Your counsel submitted that I should release you on a CCO, or on a combined order. The seriousness of your offending precludes the making of either of those orders, however I do accept that there are strong matters in mitigation. They explain why I have moderated the sentence that I would otherwise have imposed and why I have fixed a relatively low non-parole period.
29 You are convicted and sentenced to 25 months' imprisonment. I fix a minimum term of ten months before you will be eligible for release on parole. I declare 39 days pre-sentence detention. I will have my associate forward my sentencing remarks to the Parole Board. Whilst it is a matter for the Board as to whether you are granted parole, it is important that the Board be provided with my assessment of the positive progress that you have made since late 2015.
30 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. Anything else, gentlemen?
31 COUNSEL: No, Your Honour.
32 HIS HONOUR: Yes, you can remove the prisoner.
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