Director of Public Prosecutions v Mazur

[2017] VCC 1442

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00585

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES MAZUR

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 October 2017
CASE MAY BE CITED AS:	DPP v Mazur
MEDIUM NEUTRAL CITATION:	[2017] VCC 1442

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
For the Accused	Ms R. Greensill

HIS HONOUR: 

1James Mazur, 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 2005.  In particular, I note that you have
a number of prior convictions for assaults, threats and property damage.  I shall return to the question of your criminal history later in these sentencing 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 a co-offender, in a loose sense, Jonathan Luca, for his participation in the same riot.  I adopt those sentencing remarks as to 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, cause 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 were 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 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 in order to repel the attacks;

·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:

·At the outset of the riot from about midday, you were kicking the fences at Areas 1, 2 and 3;

·You entered the CMC disguised;

·Inside the CMC, you picked up a chair and smashed a control panel with it;

·You entered the Billingham Unit, causing damage in the officers’ post by smashing equipment fittings, throwing chairs and destroying items and paperwork;

·You entered the Atwood Unit and caused damage in the officers’ post;

·You entered the Burnside Unit and threw around sugar and flour and threw items at the windows;

·You smashed a glass door with a pole in the Burnside Unit;

·You threw items at prison officers near the horticultural area;

·As prisoners were repelled from the horticultural area, you picked up bolt cutters and intimidated prison officers with them;

·You then threw rocks at prison officers;

·You drove a prison buggy;

·You were carrying a pole in Area 3;

·You entered the Chartwell Unit after it was breached;

·You again entered into the CMC after the second breach;

·At about 5.21 pm, you entered the Chilwell Unit and threw around items and damaged the officer's post.

8On 15 October 2015, you are interviewed by police.  Essentially, you made denials to involvement in the riot.

9You were remanded in custody on 19 April 2015 and you were still on remand as at the date of the riot.  On 24 August 2015, you were sentenced in the Magistrates Court to a period of imprisonment of just over six months for that unrelated offending.  You were released from prison on 5 November 2015.  You were charged on summons with riot on 22 December 2015.

10On 29 January 2016, you were placed on a community corrections order for drug offences, driving offences and intentionally destroying property.  You failed to comply with a CCO almost immediately, but remained in the community.  In September 2016, you contravened a family violence final intervention order and you were charged with offences relating to that in November 2016.  On 13 April 2017, you were charged with drug trafficking, firearms and weapons offences. You were remanded in custody on that date and you have remained in custody since that time.

11You have 50 days pre-sentence detention, excluding today.

12I 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.  That is, none of those officers alleged that you confronted them directly, or that you directly caused injury to them. Nevertheless, it is apparent from the prosecution opening that you were involved in the direct confrontations with prison officers on at least four to six occasions and that you threw rocks and items at officers and you engaged in other conduct to intimidate them.

13Many of the officers who made victim impact statements 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.

14I turn now to your personal circumstances. 

15You are 30 years of age and were born in August 1987.

16You were supported in court by your mother.  It is apparent that you still have her care and love, although I was told that drugs have strained your relationship with her and with your sister Jeanette, from whom you are essentially estranged.  You do, however, speak to your mother weekly.

17You have no real relationship with your father.

18You were raised in the Mill Park area.  Your father worked as a chef, but was
a heavy drinker.  He spent much of the day sleeping or drunk.  Your parents’ marriage was marked by verbal abuse and violence.

19When you were ten years old, your father directed his violence against you and you were badly assaulted.  Your parents separated after that point and you and your sister were placed in foster care for a period.

20Your counsel, Mr Newton, characterised your teen years as not focused on education, but preferring the company of your peers.  You started smoking cannabis in about Year 9 and already had the beginnings of an early criminal history.  Your nose was broken in an arrest when you were 15 years of age. You left school before completing Year 12.  Even by that time, you acknowledge that you were simply smoking too much cannabis.  In March 2006 however, you got a job as a machine operator.  You liked the work very much and got on well with your workmates.  You left that employment in May 2007, as you were to face charges of robbery, recklessly cause serious injury and intentionally cause serious injury in the County Court.  You received a period of two years, to be served in a youth training centre for that offending.  You received a further sentence of three months' imprisonment for trafficking a drug of dependence, which was served in that time.

21In all, you served 11 months at the Malmsbury YTC.  However, the further price that you paid was that you lost everything that you had built up through your previous employment.

22In 2008 you secured another job that you highly valued at Ford.  You were employed as a full-time casual and unfortunately you were laid off with the onset of the global financial crisis.

23In 2009, you started working at a bakery.  Your mother also worked at the bakery.  You commenced a relationship with a co-worker, Stephanie, and
a daughter was born to you both on 20 June 2011.  Your relationship with Stephanie was difficult.  She was married at the time and you were both using the drug, ice, that is, methylamphetamines.  A relative of Stephanie’s made the decision to remove your daughter to live with her extended family in the Philippines.  You have not seen your daughter since 2011.

24Your life between 2011 and 2015 was marked by sporadic employment, the continued use of methylamphetamines and the stormy relationship with Stephanie.  You spent time in and out of gaol and appearing before courts on charges of contravening family violence orders, assaults, criminal damage and driving matters.  In that period, your relationship with Stephanie finally ended and you have had no contact with her now for 18 months.

25Mr Newton submitted that you continued through your adult life to overemphasise the importance of peer affirmation.  At the time of the riot on
30 June 2015, and principally through your use of drugs, you were estranged from every one of your family members and from Stephanie.  You relied heavily on the company of other prisoners and acted as part of that cohort during the course of the riot.

26Importantly, however, Mr Newton submitted that you have gained insight and have expressed sincere regret and remorse for your conduct and involvement in the riot on 30 June.

27When you were released from prison in November 2015, you started a new relationship with a young woman, Kelly Ann Wood.  Regrettably, you had mutual drug issues.  In the time since your release, as I have adverted to, you have faced further family violence matters, assault and other charges and you have a drug trafficking matter, firearms and controlled weapons matters outstanding.

28Since you were remanded back in custody in April 2017, you have used your time constructively.  You have completed a road workers “stop and go” course, a 24-hour program to address your ice addiction and you have applied to complete courses in information technology and horticulture.  Further, in
a random testing, you have tested negative to drugs since you have been in prison on this occasion.

Gravity of offending and Your role in it

29The serious nature of the offence to which you have pleaded guilty can be seen by 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;

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

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

30The wording of the charge to which you have pleaded guilty, makes it clear that it would be wrong of 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 of you, 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.

31Great 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.

32The offending in this case is made more serious by the fact that you and your fellow prisoners who participated in the riot, acted against law enforcement officers in the execution of their duties.  As Chief Judge Kidd observed 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].

33The actions of you all were aimed directly at the law enforcement officers; both in respect of the laws made regarding your detainment and then in direct and violent opposition to those officers 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.

34The 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.

35It 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.

36The Crown submits that your role was worse than, or at least equal to that of Barnes.  The Crown submitted that whilst Barnes did more damage and had worse prior convictions, your role was equally as significant, as you violently confronted the prison officers on numerous occasions.

37The Crown characterised your conduct as persistent, violent and dangerous. Your participation lasted for some five to five and a half hours and it was submitted your actions took on a high level of significance from the outset. Moreover, there were the several direct significant confrontations with prison officers.

38In the circumstances of your criminal history and subsequent offending; your ongoing addiction to drugs; and the relatively recent breach of the CCO shortly after it was imposed, the Crown submitted that I should find your prospects of rehabilitation are guarded.

39On your behalf, your counsel, Mr Newton, submitted that your plea should be mitigated by the following factors:

·First, the early plea of guilty.  I note that this was always going to be a plea of guilty to the charge of riot;

·Next, you have displayed insight and have expressed remorse and regret for your involvement in the riot;

·Third, that you have reasonable prospects for rehabilitation.  Mr Newton submits that this follows from your good work history, your family support, your determination not to use drugs and your participation in vocational and relapse prevention courses whilst in prison;

·Next, you were subjected to a 23-hour lockdown from July until your release in November 2015 and you have been locked down for 16 hours a day since your remand in April 2017;

·Next, he submits there must be some allowance made for the fact that since you were involved  the riot, you have spent some seven to eight months in prison again; and

·Finally, Mr Newton submitted that whilst it is conceded that your moral culpability is above that of Luca, it was no more than that of Barnes.

40In this case, I consider that there is a significant utilitarian benefit in your plea of guilty.  I note the Crown concession, “that this was always going to be a plea of guilty to riot.” 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.

41I consider that there is also some indication of remorse.

42The sentence that I impose will take into account your earliest plea of guilty and the fact that it facilitates the course of justice.

Lockdown/hardship

43The lockdown regime added considerably to the burden of your imprisonment in 2015 and continues to do so whilst you remain on remand.  Whilst it is true that you were in lockdown in 2015 because of your participation in the riot,
I shall still take some account of the added burden that you face during that period in 2015 and also at the present time.

Prospects for rehabilitation

44I accept that you have some prospects still for your rehabilitation.  It is apparent, however, that your prospects for rehabilitation are entirely dependent on your resolve to overcome your addiction to ice.  It is apparent that your addiction to methylamphetamines has fuelled your criminal offending and has substantially interfered with your ability to work and your family and intimate relationships. Unless your addiction is addressed, your prospects for rehabilitation are poor.

45In my view, the principle of totality whereby I should take into account previous periods of imprisonment, should only have relatively limited application in this case.  Ideally, if you had been sentenced at a time much earlier for this offending, then it is likely that you would have received a period of concurrency with time you have spent in custody since then.

46After reviewing the evidence of your offending and after considering the sentencing remarks in Barnes, I have come to the conclusion that your offending and moral culpability is not higher than Barnes.  Barnes was highly destructive.  He pushed a tug onto a fire, which caused the tug’s total destruction.  Also, as noted, Barnes has served significant periods of imprisonment.  In the end, however, there is only limited utility in comparing your matter to sentences in other cases.  I must consider carefully the circumstances in which your offending took place and I must consider the matters raised in mitigation in your matter, in order to arrive at the sentence appropriate to you.

47Your persistent direct and violent confrontation of prison officers, together with your numerous acts of damage to prison property, means that I must ascribe
a high level of moral culpability to your offending.  Put simply, your role in this offending is high and the sentence I impose on you must reflect your role.  It will, of course, be mitigated to some extent by the matters personal to you.

48I consider that the offending in this case and your role in it, must be met by
a term of imprisonment.  I have decided that the structure of a period of parole, which would provide a firm foundation for your reintegration back into the community upon the expiration of your sentence, is appropriate.

49Now, Mr Mazur, it will be necessary for you to work hard whilst you are still in prison to co-operate with the 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 the 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.

50On the charge of riot, you are convicted and sentenced to a term of two years' and nine months' imprisonment.

51I order that you serve a non-parole period of 18 months.

52I declare the period of 50 days pre-sentence detention reckoned as already served.  That is excluding today.

6AAA

53The 6AAA declaration is that, but for the plea of guilty, I would have imposed
a sentence of five years, with a minimum of three years, three months to serve.

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