Director of Public Prosecutions v McCumber
[2017] VCC 238
•14 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-02064
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE McCUMBER |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 March 2017 |
| DATE OF SENTENCE: | 14 March 2017 |
| CASE MAY BE CITED AS: | DPP v McCumber |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 238 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr M. Robinson | OPP |
| For the Accused | Mr J. Miller | VLA |
HIS HONOUR:
1 Jamie McCumber, you have pleaded guilty to one charge of riot. The maximum penalty for this offence is ten years' imprisonment.
2 On 24 October 2016, His Honour Chief Judge Kidd, sentenced a co-offender, Johnathon Luca, for the offence of riot. I adopt the remarks His Honour made regarding the overview of the events that occurred on 30 June 2015. He said this:
"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 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 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 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 actions span the period 11.45 am to 4.38 pm.
· At 11.45 am, you were with a group of prisoners gathered at the junction of Areas 1, 2 and 3, who refused to return to their cells after a routine muster.
· After midday, fences dividing these areas were breached and you were part of a group of prisoners who walked towards the CMC. You did not disguise yourself at this point.
· At approximately 12.22 pm, a group of prisoners breached the CMC. You were not in the first wave of prisoners to rush at the CMC gates and did not participate in the destruction of the CMC. Instead, you walked through the CMC to the external area near the canteen. You attempted to conceal your identity at this time.
· At 12.29, you entered the canteen, after it had been broken into by other prisoners and stole items.
· At approximately 1.45, you entered the Bellingham Unit once it had been breached and you damaged the walls.
· You again attempted to conceal your identity when you congregated with other prisoners on the basketball court in Area 3.
· At 3.27, prisoners were throwing rocks at prison officers. Prison staff deployed tear gas. You were with a crowd of prisoners, some of whom threw tear gas canisters back at the prison officers.
· Throughout the period of your offending, you roamed through Areas 1, 2, 3 and 4.
·
At 4.33, prisoners again attacked the CMC. You were present and participated by throwing items towards prison officers. The officers were required to evacuate the area. A motorised tug was used to ram the gates of the CMC and breach it again. Entry was gained and you and
a number of prisoners can be seen encouraging the driver to manoeuvre through the gate and into the building.
· Within a short time members of the Prison Security and Emergency Services Group stormed the facility and retook control. Prisoners continued to confront prison officers and began throwing rocks and missiles. Tear gas was deployed and the prisoners were forced back into the area yard. You retreated with other prisoners and remained in the Area 3 yard.
4 I have been provided with 14 victim impact statements. The victims are prison officers at the MRC. In his remarks in the case of Luca, the Chief Judge summarised the impact of the riot on the victims in a way that is consistent with what I have read. His Honour said:
"The overwhelming themes arising from these statements, is that the riot had a major impact on the staff at the MRC. Several have reported difficulties in both their professional and personal lives since the riot. Some have experienced flash-backs which have disturbed their sleep. The stress has affected their satisfaction at work and has also affected their home life and relationships with their families. Some sustained physical injuries, although it is not put by the prosecution that you were responsible for inflicting any of those injuries directly. It has affected the way that prison officers now interact with the prisoners on a day-to-day basis."
5 His Honour, the Chief Judge, also 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 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."
6 I also adopt the Chief Judge’s assessment of the gravity of the overall riot.
· "As to the gravity of the overall riot, I consider this to be a very serious example of this type of offence. It is hard to make a comparison of riot offences, given there are so few. But the sheer scale of this prison riot makes this 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 that 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.
· While minor physical injuries and psychological harm was caused, thankfully this was not a riot which resulted in serious physical harm or injury. I take this into account but, self-evidently, a prison riot of this scale carried with it a very high degree of risk to the personal safety and security of the prison officers and other public servants involved. It caused significant fear."
7 I now move to an assessment of your role in the offending. I accept that you were not one of those involved in the planning or organizing of the riot. In addition, your contribution was confined to the acts and to the period of time I have already identified.
8
Whilst I find that you did not play the role of a ringleader in the riot, you did play a significant role. You were with the group of prisoners who gathered at
11.45 am at the junction of Areas 1, 2 and 3. The riot gained momentum from this time. Your involvement continued for nearly five hours. Your actions included entering the CMC at around 12.23 pm; stealing property from the canteen; causing damage to the walls in the Billingham Unit; being present with prisoners who threw rocks at prison officers in the mid-afternoon; being present with other prisoners when the CMC was breached a second time; and throwing items at prison officers. Your participation in the second assault on the CCM, directed as it was against prison officers trying to restore order, is a particularly serious aspect of your offending.
9 You have a significant criminal history. It commences in 2000. You have received sentences of detention in a youth justice facility, a suspended sentence, a community corrections order and periods of imprisonment.
10 Given this history, specific deterrence and protection of the community are relevant sentencing considerations.
11 There are subsequent matters that are relevant to your personal circumstances. At the time you committed the offence of riot, you were on remand for offending that occurred on 1 October 2014. In 2015, you pleaded guilty in this court to charges of false imprisonment, armed robbery and blackmail.
12 On 10 September 2015, you were sentenced on these charges by His Honour Judge Mullaly, to a total effective sentence of four years and nine months, with a minimum term of three years and three months. 297 days were declared as pre-sentence detention. You are now undergoing that sentence. Your estimated earliest release date on that sentence is 15 February 2018.
13 I have mentioned the subsequent offending and the associated orders because they are relevant to the issue of totality of sentence. I will come back to this matter a little later in these remarks.
14
You are 33 years old. You come from a background of hardship and disadvantage. Your parents separated when you were young. Your childhood was characterised by instability, impoverishment and emotional neglect.
Mr Matthew Staios, a consultant psychologist, has provided a report in which he says this about your background:
“Mr McCumber stated that on four occasions between the ages of five and eight, his mother moved the family from Melbourne to Perth. Furthermore, Mr McCumber became a ward of state at the age of eight years old, after safety and substance abuse issues prevented his mother from adequately caring for him.”
15 In your early-teenage years, you were placed in foster care. You told Mr Staios that your experiences in the foster care system were “unstable and difficult”. You had eight different placements. It seems that some of those placements broke down because of your problematic behaviour. Between the ages 14 and 16 you had periods when you lived on the streets. At some stage amongst this chaos, you did have an interval of stability when you lived with your father and brother in Corio. During this time, you attended St Augustine’s school in Geelong, which had a specialist program for those who had struggled in mainstream education. Even so, you are poorly educated.
16 Mr McCumber, I am satisfied that you have come from circumstances of great deprivation and disadvantage. There must be some moderation of the principles of deterrence and denunciation to reflect the great hardship you suffered during your formative years. On the other hand, the hardships you have suffered have left you with a propensity to breach the criminal law with regularity. This means that I must give appropriate weight in sentencing to the principles of specific deterrence and community protection.
17 You have worked in various unskilled jobs since leaving school. Your ability to work has been affected by your substance abuse problems. These problems commenced, as they always invariably seem to do, with the abuse of cannabis and alcohol from a young age. After leaving your father’s home as a 17 year old, you commenced using methylamphetamines and heroin. Drugs have been a factor in much of your prior offending. It was a factor in the significant offending of October 2014.
18 In his report of 22 November 2016, Mr Staios expresses the opinion that you currently meet the criteria for a diagnosis of major depressive disorder (with anxious distress) and stimulant and opioid use disorder, which is in remission in the controlled environment of the prison. That said, your counsel did not seek to rely on any impaired mental functioning as a factor that would mitigate penalty in this case.
19 Your significant history of offending and substance abuse makes me extremely guarded about your prospects of rehabilitation. Attempts by courts in the past to address your substance abuse problems have been unsuccessful. Your counsel told me that you have insight into the problems drug has caused you. He explained that you had tried methadone programs in the past without success. In late-2015, you stopped taking methadone because you decided that you needed to take control of your life. You have done programs in custody and you have been attending Narcotics Anonymous and Alcoholics Anonymous. This is to your credit.
20 Your counsel explained how your desire to become involved in the life of your young daughter has provided an important incentive for you to remain drug-free in the future. Obviously, your prospects of rehabilitation would be greatly enhanced if you could remain drug-free upon your release from prison.
21 You have entered a plea of guilty and I am satisfied that the plea is indicative of remorse. Your plea has saved the need for witnesses to be called to give evidence and avoided the cost and expense associated with a criminal trial. You will be given credit for all these matters.
22 The principle of totality is relevant in this case. You are currently serving the non-parole period imposed by Judge Mullaly. Under s.14 of the Sentencing Act 1991, I am required to fix a new non-parole period. In doing that, I must consider the total sentence that would have been imposed, had all of the offences been determined together.
23 You have now been in custody since late-2014. When Judge Mullaly sentenced you, he gave you credit for pre-sentence detention. This means that your entire time in custody until today’s date has been served under the order made by Judge Mullaly. I will take this into account in a general way under the principle of totality. I note that when Judge Mullaly sentenced you, he mitigated his sentence on the basis that your period in remand had been “especially hard due to the riots and the consequences of them.”
24
Parity is a relevant matter. There are a large number of prisoners charged with this offence. Very few have been dealt with so 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, an overall assessment of your respective behaviours would enable me to conclude that you were a
mid-level offender, but “under Luca” in that range. I agree with that assessment. You were a follower more than a leader. However, Luca had the mitigating factors of youth, limited prior history and better prospects of rehabilitation. In these circumstances, it would be appropriate to deal with you in a way that is similar to Luca.
25 Will you stand please?
26 You are sentenced to a term of two years' and four months' imprisonment.
27 I direct that 18 months of this sentence be served cumulatively upon the Judge Mullaly sentence. This makes a total effective sentence across the two matters of six years and three months.
28 I am required to fix a new non-parole period on all matters. I fix that period at four years and three months.
29 If you had pleaded not guilty and been found guilty after trial, I would have sentenced you to an imprisonment term of three and a half years. Of that term, two and a half years would have been cumulative on the sentence of Judge Mullaly. This would have made a total term across both matters of seven years and three months and I would have fixed a new non-parole period of five years and six months.
30 You can be seated there.
31 Is there anything else, Ms Nilson or Mr Andrianakis?
32 COUNSEL: No, Your Honour.
33 HIS HONOUR: Thank you. The prisoner can be removed.
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