Director of Public Prosecutions v Murphy and Connelly

(Un

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01531
CR-17-01532
Indictment No: G11023772
G10175818

DIRECTOR OF PUBLIC PROSECUTIONS

SEAN MURPHY
ADAM CONNELLY

---

JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 26 November – 18 December 2018 Plea: 22 February 2019, 1 March 2019
DATE OF SENTENCE:	5 March 2019
CASE MAY BE CITED AS:	DPP v Murphy and Connelly
MEDIUM NEUTRAL CITATION:	[2019] VCC 238

REASONS FOR SENTENCE
---

Subject: Prison Riot; Trial.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Lewis and G Hayward for trial. G Hayward on the plea	OPP
For the Accused	Ms C Lynch Ms M Casey	Furstenberg Law D’Allesandro & Associates (at Trial) McFarlane Criminal Law (at Plea)

HIS HONOUR:

Adam Connelly and Sean Murphy, following a trial, on 18 December 2018, a jury unanimously found you both guilty of one charge of riot.
You have been in custody since the date of verdict. Indeed you were both in custody leading up to that verdict, you on remand Mr Connelly and you undergoing sentence Mr Murphy. The matter was adjourned for plea to 22 February when the plea was conducted and then I remanded you to last Friday for sentence. On that date it was adjourned off further to today's date for sentence.
You each have significant enough criminal histories.
The maximum penalty is 10 years imprisonment.
Facts
The jury has found you both guilty. Their verdicts obviously enough were founded on the evidence they observed in the trial. It is pretty futile my endeavouring to descend to the full evidence given at the trial. As you know, so much of the evidence against you, virtually all of it, consisted of the footage taken at the scene of the riot. Now of course there was some evidence led from various staff members but none of that descended to the particular players, and certainly not to any identification of any of your acts or movements. So the footage was critical. There was footage from a variety of cameras within the prison and also from a number of other cameras in police and television news helicopters as well as from a drone hovering above the mayhem. The material was sensibly broken down player by player, with some convenient highlighting of each of you.
The issue at trial was not the identity of the participant or some dispute as to the acts you each committed but rather whether the assembled evidence established beyond reasonable doubt that you were intentionally assisting or encouraging the principal offenders. That was the basis of liability in this case. The jury has answered that question with their verdict. The prosecutor in his final address went to the footage in detail and made submissions as to what the jury could draw from it. In each case your counsel went to the jury and highlighted the importance of the absence of some of the acts and conduct seen committed by so many of those around you. True it was the footage showed what it showed, but they argued on your behalf that the absence of the more extravagant acts signified that you were not intentionally assisting or encouraging the riot at all. The jury disagreed.
The prosecution summary of opening isolated the broad facts as against each of you which were said to show that you were assisting or encouraging the riot. The prosecution written submissions on the plea identify those same acts. The footage is the footage and shows what it shows, each of those acts. The jury was clearly satisfied of the allegation beyond reasonable doubt as they found each of you guilty. No question about that. There were some written submissions from each of your counsel addressing the manner of interpretation of the jury verdict but I think it fair to say those matters assumed far less importance in the oral presentation of the plea.
Ms Lynch’s written submissions went into quite some detail and Ms Casey’s written submissions adopted that portion of Ms Lynch’s written submissions in that area.
Ms Casey abandoned what were said to be the implied positives to be taken from the inability of the jury to reach a verdict in the case of the co-accused, Mr Sen. So paragraphs 8 and 9 were abandoned, sensibly so. They really made little sense at all as there was a strong separate consideration direction given in this case, as there had to be. Nothing sensible as to the Juries state of mind in your cases could be taken from the inability of that jury to reach a verdict in the case of the co-accused, Mr Sen.
Ms Lynch at one point suggested that the jury question posed in the course of deliberations as to whether a single act was sufficient suggested that they, the jury, may have only been satisfied of one act. I posed to her then, which act? Her enthusiasm for the point seemed to evaporate pretty swiftly. Correctly so in my judgment.
I have no doubt at all, indeed I am satisfied beyond reasonable doubt that the jury verdict is based on an acceptance of all of the evidence which is helpfully isolated in the prosecution submissions. An acceptance that at each stage as you so acted, you were each intentionally encouraging or assisting the principals. The only exception I make is the occasion of some pretty half-hearted and isolated activity by you,
Mr Connelly, where you back heeled a fence at around 12.58 that day. I’m not sure who exactly you were encouraging or assisting at that point so I am not satisfied beyond reasonable doubt that the jury would have attached any significance to that act or concluded that at that time it was done with the required intention. But all of the other acts particularised are in a different setting. Even something as simple as your head coverings. You were both wearing disguises. You, Mr Connelly, as you made you way up towards the CMC, getting assistance from others to wear a disguise. You were also taking steps to hide your identity, Mr Murphy, as the footage plainly shows. All of this well before the deployment of any tear gas at 12.45 PM.
Frankly whether it was one act or a number will not make a jot of difference in terms of sentence. What is important is the acceptance of your acting at a low level which you undoubtedly both were, but as I say I am satisfied beyond reasonable doubt it was all those acts described in the third paragraph of the prosecution submissions defining your role other the one I have mentioned in your case, Mr Connelly. When one examines it of course, the whole purpose of these defence submissions as to the interpretation of the jury verdict was to lead me to an acceptance by this court that each of you was acting at low level.
Well you were. I accept that you were. The Crown conceded that you were acting at a low level. Ms Casey’s suggestion of it being at the lowest level cannot pass muster and was seemingly not adopted by Ms Lynch and for good reason. How could it be said you were at the lowest level when disguises were worn. They were not by all, but they were by you, you both entered the canteen and a unit, and you Mr Connelly rode on a vehicle whilst wearing breathing apparatus and you Mr Murphy advanced behind a trailer containing rocks whilst others close to you threw rocks at prison officers or in their direction, and you faced those officers and swung an object, a chain or seemingly some metal object, the precise manufacture is not important, but you were swinging it in a circle.
Plainly neither of you were acting at the lowest level. Equally plainly, and this is important, you were not leaders or planners. You were not organisers or involved in causing any damage or engaged in any physical assaults. You walked past many people who were far more energetically and extravagantly engaged in the riot. I suspect that aspect probably led to your running the trial. You, unlike so many others, were not smashing windows or equipment or throwing back teargas cylinders or destroying documents. You were not charging at prison officers. You were not inciting others.
There would perhaps have been be a sense in your mind of injustice in your being charged when comparing your quite limited acts to those of the more committed and enthusiastic prisoners seen in the footage. No doubt I could expend far more time, effort and words dealing with these issues as to role but I do not see the point, for as I say, I accept that you were acting at a low level and no amount of words on the topic is going to improve that position which after all, is favourable to you. It isn’t dependent on the number of acts in any event.
I should add for completeness neither of you gave evidence at trial. Each of you co-operated with the police and participated in interviews where you made various admissions as to your movements within the prison on the day. I take that into account in your favour.
Mitigation
As I have indicated, your counsel each filed some written submissions on the plea. In your case Mr Murphy the sentencing remarks of Judge Wilmoth were placed before me by agreement. In your case, Mr Connelly a number of expert reports were filed as well as some medical certificates and a community corrections order breach report. In each case there was a very detailed chronology placed before me. The chronology assumes real importance in each case for reasons which I will explore later in my remarks.
Ms Lynch, for you Murphy:
·took me to your background and argued that you had some prospects of rehabilitation;
·As I have indicated already, she made some submissions about the offence, your limited role and how it might be characterised. She dealt with the absence of a variety of aggravating features but still conceded the seriousness of your offending and the inevitability of
a term of imprisonment and a new single non-parole period. I say new single non-parole period as you are serving a sizeable sentence courtesy of Judge Wilmoth’s sentence imposed in June 2017 at this court. Though the Court of Appeal subsequently made some amendments to charges, the total effective sentence and non-parole period were unchanged, so I will keep referring to it as Judge Wilmoth's sentence in these reasons. Totality is obviously a very important consideration in your case.
Ms Casey for you Mr Connelly :
·took me to your background including the recent efforts made on a community corrections order and argued that you had at least some prospects of rehabilitation;
·at the various stages of the plea, including today, she spent some time dealing with your predicament in custody;
·She also made some submissions about the offence and how it might be characterised as well as your limited role. She also highlighted the absence of a number of aggravating features but she likewise conceded the seriousness of the riot. She also took me in some detail to the events since the riot and the periods of imprisonment that you had served independent of the pre-sentence detention for this matter. Again in your case plainly totality is an important consideration. She was arguing for a combination type disposition, that is a term of imprisonment in combination with a community corrections order and I took her to argue that your pre-sentence detention of about 175 days as at the time of the plea was sufficient to avoid any further custodial liability.
Prosecution
The prosecution in each case had prepared detailed written sentencing submissions. I am not going to set them all out here. Much of them were uncontroversial and they spoke of the principles of sentencing for this sort of offence and drew attention to statements in the case of Kumas v The Queen [2017] VSCA 287 as well as DPP v Luca [2016] VCC 1573. Those principles are not in dispute. They placed before me a handful of what were said to be comparable cases or cases with at least some similarities. There was also a chart of some other sentences imposed on other prison rioters. That was placed before me by your counsel
Mr Murphy. I have not mentioned but do now that around 100 others have been dealt with for their role in this riot. As I understand it, they have all pleaded guilty.
Victim impact
There are a large number of victim impact statements filed from various prison officers and prison staff and Emergency Response Unit members who had the misfortune to be caught up in this terrifying event. That is what it was. I have read them again since the plea. Plainly the event has had very major impact on those caught up in it. I interpose there was direct evidence given at the trial by Ms Amber Stabek who described her fear as she fled from one unit to a 4WD that had been sent in to rescue prison officers. She and others with her ran for their lives with cover provided by a helicopter hovering above. The prison descended to a state of complete shambles and anarchy on this day. No one caught up in it will ever forget it. The prison staff and those seeking to break up the riot were just doing their job and that job on the day exposed them to all manner of risk, and has led to unfortunate impacts that reverberate even many years later. They report various difficulties in their personal and professional lives.
I see no need to restate all the impact material here. There is nothing at all surprising about any of the sentiments raised in any of those impact statements. Of course I do not sentence either of you for any physical damage caused or direct threat issued. That was not the nature of your involvement. Still this riot has caused very significant and lasting impact to many and you were both part of it, intentionally encouraging or assisting it as you did.
I do take into account the impact of this crime as I am required to.
Background
I turn now to your respective backgrounds. In each case I am going to deal only quite briefly with your personal background. The reality was that in the oral submissions, it was placed before me in a relatively abbreviated form and for good reason. I have no reason not to accept your personal historical background. It is set out in greater detail in your case Mr Connelly in the various reports placed before me. In your case
Mr Murphy, the sentencing remarks of Judge Wilmoth sets it out in some detail. There is no utility in my now slavishly restating either of your backgrounds. You know what they are. Just very broadly though I will say something of them.
Murphy
Mr Murphy you are 29 years of age, born in May 1989. You went up to live in Merimbula at the age of 11, returning to Melbourne when about 17. Your schooling was unsatisfactory, year 8 or 9 at best, with drugs taking a hold far too early in your young life. There was it would seem in your developmental years a lack of family support. Your mother had some serious mental health issues as I understand it and you did a couple of years of a tiling apprenticeship and then six months at the Holden plant at Port Melbourne but you started using heroin at the age of 20 and not much has happened since on the work front. You still enjoy family support though and that is a positive and you are close to your sister especially.
You have a lengthy enough criminal record. I see no purpose in conducting an audit of it in these reasons. You have been given a number of chances and not taken them, that much is clear enough. The chronology shows that having been sentenced on
12 September 2015 (so after the riot) for various offences which had been committed before the riot, you were released on a community corrections order in October 2015 but then committed a number of offences ultimately dealt with in June 2017 by Judge Wilmoth. That conduct was serious indeed and was rewarded with a head sentence of 6 years with a non-parole period of 4 years. You are currently eligible for consideration of release on parole on 15 April 2020 with a sentence lapse date of 15 April 2022.
Ms Lynch told me of a pending matter, the allegation of some prison assaults (charged as recklessly causing injuries) listed on 9 April 2019. It was not clear how those matters were proceeding so I believe it is inappropriate to attach any weight at all to those outstanding matters. I put them aside altogether.
What is plain then when I examine that history and the criminal record is that you are currently serving the longest sentence by far that you have ever served. You have been continuously in custody since 15 April 2016 and there is therefore no pre-sentence detention to be declared by me.

Connelly

Mr Connelly you are 39 years old born in June 1979. You were raised in Morwell, with younger sisters and a brother. As I glean it from the materials, your parents would frequently separate and are now separated though they still both support you, so again that is a positive. You were educated to year 10, are literate and worked in general labouring, scaffolding and bricklaying. You had a job for a couple of years in a garden supply store. You have a partner whom you have “reunited” with but of course you are in custody. The breakdown of that relationship it would seem had some role to play in your lack of engagement in the most recent community corrections order that you breached. You, like your co-accused have had longstanding issue with drugs. You are not pessimistic about the future and obviously have some hopes of living a better life. You say that you have learnt a bit about yourself whilst in custody and have obtained some benefit from some courses you have done.
Ms Casey submitted that you have spent only three or so years in the community out of the last 10. There were parole breaches in 2012/2013. I am not going to work my way chapter and verse through the chronology or your criminal history. These reasons will be long enough already. You have also received many opportunities and have not taken them. You were in custody obviously at the time of the riot. You were on remand at that stage. Those matters for which you were held on remand were dealt with by way of a combination type disposition (community corrections order and prison) on
17 December 2015.
You were released onto the community corrections order on that day owing to the pre-sentence detention you had served. You committed offences in the currency of that community corrections order and went back into custody in April 2016. The fresh offending and breach were dealt with in the Magistrates Court but finalised on appeal to the County court siting in the Latrobe Valley on 12 October 2016. You received 16 months imprisonment and a 2 year community corrections order. You were released in August 2017. On 15 January 2018, you received 14 days for an assault. As to the community corrections order, you breached that community corrections order, at this stage by non-compliance.
There are some outstanding matters listed which if proven would presumably be breaches by offence as well, but I put that aside as that is not important. As I say though, the breach by non-compliance has been admitted. That breach is outstanding before another judge of this court and is listed later this year. The judge is waiting for the outcome of this sentencing exercise which makes good sense. Though you have breached the order, the signs were not all bad as the breach report makes plain. You had obviously taken some real steps to engage on that order but sadly fell short as you have in the past on such orders. I take that positive into account though of course there is the negative of yet again breaching an order. You are not a hopeless case at all. In addition, in your case Mr Connelly, there is the psychological material placed before me. I will say more about that later in these reasons. Also I will say something as to the medical materials relating to a leg fracture and the most unhappy sequel from that.
Rehabilitation
In each case then, I turn to your prospects of rehabilitation.

Truthfully, in neither case is there much cause for optimism. The chronology and an examination of the criminal history in each case is troubling. Now counsel did not muck about and apply glowing adjectives to describe your future prospects. How could they given what has occurred in the past as well as what has occurred since the riot? I can obviously only be quite guarded here. You both have lengthy criminal histories. You have served sentences. You have breached orders. You have each offended since the riot. You are no longer young men.
I am not particularly optimistic at all but I am not prepared to write either of you off. You still each have some family support and I sense some desire and hope to live a different life. That is a start. It will take real effort by each of you. I think you both must know that. So much will depend on your ability to remain drug free, something which has been elusive for both of you for very many years. If you keep using drugs you will have no prospects of rehabilitation. None.
You have both served already sizeable periods in custody since the riot. You are serving 6 years with a 4 year non-parole period Mr Murphy and are surely at an age where you must understand that it is either reform for you or longer and longer periods in prison. What sort of life is that? Mr Connelly, you have spent a sizeable period in custody in the lead up to and since the riot. Firstly the sentence imposed in December 2015 for the matters which you were in custody for at the time of the riot. Then the sentence imposed for breach of that order, as well as fresh matters finally disposed of in the appellate jurisdiction of this Court sitting at the Latrobe Valley in October 2016. Then a 14 day concurrent term imposed in January of this year and then of course after the lapse of those various terms, the time spent already on remand for this matter by way of strict pre-sentence detention.
You had made some real efforts on the community corrections order imposed
Mr Connelly, but of course you have breached it. You have failed yet again to complete such an order. At least you put in something of an effort. You also it would appear from the material placed before me have been diagnosed as having an antisocial personality disorder.
So in each case there is little cause for great optimism but I certainly will not write either of you off. I have a sense that neither of you is beyond reclamation. I will find that you have some realistic prospects of rehabilitation if you put in the work but you will need to put in the work and it will not be easy. If you do, you may yet each live productive lives. The work is ahead for each of you but it is never too late.
Delay
I turn now to delay. It was not greatly emphasised by either counsel truthfully but as we know the riot occurred in June 2015. It was a massive riot as we do know and unsurprisingly it was a massive investigation and understandably it took quite some time for you to be charged. If I may interpose, the interactive brief which had been prepared as against all those many charged was a work of art and made the materials manageable for all concerned.
You were both discharged at committal in March 2017. Had you not been, the matter presumably would have been dealt with earlier and you would not have lost the opportunities for concurrency that may have then existed at that earlier stage. I have to be realistic though in this regard. The fact is much of the later custodial liability in each case was produced by subsequently committed crimes, that is subsequent to the riot.
You were directly indicted on 10 August 2017. You Mr Connelly failed to appear on
6 August 2018 though this did not delay the trial as you were arrested on 31 August 2018. At the first trial listing (1 October 2018) the matter was not reached and went off until 26 November 2018. Again this was beyond your control. You were found guilty, each of you, on 18 December 2018 and now fall to be sentenced in March 2019 for the offending occurring in 2015. Plainly a lot has happened in each of your lives since the riot including the significant periods of imprisonment spoken of in each chronology. That is so, irrespective of the commission date of the offending. It cannot have been easy having this matter over your head and I take into account the delay in the ways urged upon me by counsel.
Increased burden/psychological report
I turn then to the aspect of the psychological material and the claim of increased prison burden in your case Mr Connelly. In your case at the time of the plea conducted in February, there were the expert reports that I have spoken of and the Forensicare certificates and email. The later materials being the certificates and the email were very sparse in detail indeed. I have also been taken to various references in the transcript where some of these matters and other aspects in terms of your custodial predicament were raised by your counsel.
That item was marked last Friday as Exhibit C7. Now in her initial written submissions Ms Casey had developed reliance on some of the principles from the well-known case of Verdins (principles 2 , 5 and 6). She spoke in those original written submissions of the efforts to obtain the Justice health file and the inability as at the date of the plea to access that material and difficulties flowing from that position. At the hearing of the plea, I raised some issues in relation to the actual reports relied upon, including the out of date nature of Dr Ball and Ms Scally’s reports and the fact that they did not seem to support the Verdins submissions that were then being raised in the written material. Ms Casey accepted on the day of the plea that they did not support the Verdins submissions. Indeed jumping ahead she maintains that stance today in her further written submissions even after receipt of the Justice Health material of which I will shortly say more.
The Crown challenged the opinion of Dr Cunningham as to the diagnosis of post-traumatic stress disorder and in support of that said it was based entirely on your self-report.
As I say, ultimately Ms Casey in the course of the original plea abandoned altogether the Verdins submissions. I made as plain as I could on the date of that plea
(22 February) that I would permit the Justice Health file to be pursued and certainly would not shut her out from making submissions, or for that matter adjourning the plea part heard to allow her to access the material and make submissions. She took instructions from you and you instructed her not to apply to adjourn the plea. You were keen to finalise the matter and I can understand that.
In any event she explicitly abandoned all of the Verdins submissions which had been flagged in her written submissions but still argued on the strength of the materials then placed before me that I could conclude that your time in custody had been and would continue to be more onerous owing to the combination of the physical issues and the mental health concerns flagged. I do not want to get too caught up in all of this. It is clear that you are not functioning at a high level and was at the time of the plea.
Whether by virtue of Verdins or not, and she says not, undoubtedly you have had and will continue to have a relatively tough time in custody. You were experiencing sufficiently significant and acute mental health issues to have Forensicare provide the certificates marked as Exhibit C6. You had been removed from mainstream I think when I first saw you, and indeed before then, and wound up in a very restrictive regime in the Eire unit with some mention made of the possibility of consideration of Thomas Embling.
However this seemingly flowed from what was said to be your non-compliance with your medication. That is what I was told from the materials. The document from Forensicare states, “he has not complied with recommended treatment.” Your placement at Eire had significant ramifications in terms of contact with those on the outside and the way in which you were experiencing your imprisonment.
Ms Casey had mentioned some of those ramifications in the course of the trial in the absence of the jury so I could manage your position (see Exhibit C7). So there were plainly some mental health issues when I first saw you though there is still very little detail before me as to what they actually are but the label is not particularly important.
On Wednesday of last week I signed a short service for a subpoena to be served on Justice Health and the documents were produced in accordance with that subpoena to the Court on a disc last Friday (1 March 2019). I was due to sentence you at 10AM that day. Ms Casey initially did not seek to make any submissions on those documents. She wanted to inspect them but not for this case. That was not something I was comfortable with at all actually and she suggested I sentence you there and then. That did not seem satisfactory to me and I raised my concerns about that.
She then sought to inspect the documents, and that I think was sensible, and the sentence was put off to today to allow that to happen. As you have heard discussed a moment ago in court she has placed before me the documents she relies upon taken from the medical encounter notes (Exhibit C8) and has prepared some further written submissions marked as Exhibit C 9.
Again she disavows any reliance on any of those Verdins principles. She relies on the material in conjunction with other material already placed before me to highlight your increased burden in custody. Physically you were something of a wreck when I first saw you with a seriously fractured leg which had required surgery and infections that ultimately had me take the unusual but ultimately decisive action at the start of the trial in personally ringing the manager of the prison where you were then held to insist that you obtain appropriate treatment, assessment and not to mention some crutches.
You are still very much labouring physically. I am extremely alarmed by your refusal to receive treatment in the face of the recent x-ray results spoken of in the materials now placed before me. You really must urgently accept immediate medical intervention. You are risking your own health. You could lose your leg or worse and antibiotics are not the answer. There is reference made to the dangers presented by compartment syndrome. That is a condition that can take hold swiftly and lead to amputation at best on occasions. You are significantly risking your own health.
You have been told as much but for whatever reason, I cannot fathom why, you refuse any medical transfer or treatment. In any event, even before these new materials surfaced, I was prepared to find an increased burden owing to the combination of conditions I was already awake to. Plainly you are experiencing an increased custodial burden. You cannot work or easily avail yourself of programs. It is not easy moving within the prison. You are obviously in pain. You have obviously not been in optimal health, mentally or physically for quite some time.
There was something of a mental health crisis in November 2018 to which I have already referred. I do take into account all of this material but there are limits I am afraid. You are doing and have done little very to assist yourself which worries me greatly. Your failure to follow advice given to you, expert advice, increases your burden, no doubt about that, and I must not reward that stance. Your attitude must change and then the burden hopefully may well lift. Get treatment. Get relief. Do it now. That is what you must do. Opting as you have in the past not to take medication which you obviously require or not to receive vital medical treatment for the physical injury is not a sensible option.
However, having said all that, I have no doubt that there has been and is an increased custodial burden in your case and I take it into account in the non Verdins fashion urged upon me by Ms Casey. The fact is I would assign the same level of discount had the Verdins ground been made good. The point I make is that the mitigatory value does not depend upon the label Verdins or non Verdins. You are not travelling well at all. Prison has been harder for you to date and that may be the position for some time even if you see sense and follow my advice and seek medical treatment, so I take all these matters into account in mitigation.
Totality
I want to speak now of the principle of totality of sentence. I have already said that in each case totality is very important and spent some time dealing with the chronology in each case. I cannot just ignore what has happened since the riot. If I did that and just focussed on this crime and paid regard to concepts of parity I would select far more significant sentences in each case.
Had I dealt with you much closer to the event in a setting where you had spent far less time in custody no doubt I would be passing very different and undoubtedly much harsher sentences. However, as I say, I can’t just ignore the reality of your individual positions. I am sentencing you today and so I cannot ignore that you Mr Murphy have been continuously in custody since April 2016 and that you are exposed to custodial liability for a number of years ahead with an earliest possible release date currently at least of 14 April 2020 with a sentence lapse date of 14 April 2022. Nor in your case
Mr Connelly can I ignore the many hundreds of days you have served on the other sentences I was told about, or for that matter the efforts that you have made in the period where you were out of custody and on the community corrections order.
To ignore what has befallen each of you since the riot would be to ignore my obligation to pass an appropriate sentence in the individual circumstances of the individual case. That is exactly what I cannot do.
Current Sentencing Practices
I must take into account current sentencing practices. However, it is only one of a large number of matters that I must consider. It is not a controlling factor. Until this riot, the offence of riot was a quite rare matter to come before this Court. Here though, owing to the scale of this prison riot, a large number of people have been sentenced by this Court. As I am informed, all have pleaded guilty which is obviously a key distinction.
Parity
I was directed by the prosecutor to cases with some similarities, in particular the cases of Benson [2017] VCC 409 and Fikhman [2017] VCC 1162. They were low level offenders. Benson had completed two community corrections orders since the riot. I agree that those cases are comparable in terms of activity. They both pleaded guilty. Benson received 15 months with a non-parole period of 5 months. The sentencing judge quantified the discount Benson had received for pleading guilty setting out a 6AAA declaration of 2 years with a non-parole period of 15 months.
Fikhman received a 14 month term. He was serving another sentence and the sentencing judge directed that 6 months be cumulated. He made a new single non-parole period of 4 months and 2 weeks. The effect of his order deferred Fikhman’s release for some months given the cumulation order. Likewise in that case the judge was bound to provide a 6AAA declaration indicating the quantum of discount and he declared a period of 3 years with a 2 year non-parole period that would have been imposed had there been a trial. Now all those 6AAA declarations display is what is obvious to me; that someone pleading guilty receives a benefit for doing so. That is after all the law. I am very much awake to the dangers of attaching weight to the 6AAA declarations in this setting. See Perri v The Queen [2016] VSCA 89, which arose as a result of my passing sentence in such a setting.
Ms Lynch provided the Judicial College of Victoria chart in relation to the rioters who had been dealt with. It sets out the level of sentences imposed on a variety of offenders. It says something of the nature of their activity and of course it includes a number who were acting at what was judged to be a low level
There are it follows a large number of co-accused here. Now I could spend the next day in these reasons trawling my way through the various facts of all of the other cases. I could examine in each of those many cases the acts engaged in as part of the riot and then examine the specific individual personal circumstances of those other offenders and then the sentences passed upon them. It really would get me nowhere.
I am required to pay due regard to and to apply the principle of parity of sentence. As the Court of Appeal stated in Kumas, there is no particular difficulty in stating the general principles of parity. What it boils down to is that like cases should be dealt with in a like manner. That is pretty straightforward and makes good sense in avoiding as it does any justifiable sense of grievance between co-accused. The difficulty always is in applying those principles in the given case. There is virtually never an identical case. There are more commonly differences in role and individual personal circumstances.
It is a difficult enough task when the same judge is sentencing a handful of offenders, especially where there is variation in the conduct of individuals as there plainly is here. The Court of Appeal said in Kumas that it presents singular difficulties when a Judge is faced with an offence such as this involving a large number of offenders all with different roles and personal circumstances and with differing judges passing differing sentences. They suggest that a sentencing Judge has no option but to adopt a practical and pragmatic approach to parity. See paragraph 34. I gratefully adopt that suggestion. That is what I will do. So I resist the temptation to descend to the fine detail of the other offenders. The reality is not even your own two cases are precisely on all fours. There are as you both know differences in some of the personal circumstances. You are differing ages with differing histories before the courts. You are serving a lengthy sentence indeed Mr Murphy. You have experienced the difficulties in custody I have addressed Mr Connelly. These things even out as far as I am concerned and there is little if any distinction between your actual acts in the sense that they in each case fall at a low level.
I content myself with reaching the conclusion that in each case your conduct was at a quite low level. That is not to say it was insignificant or not serious. Not for one moment. It was very similar indeed to conduct in Fikhman and Benson's case. They pleaded guilty.
Principles at play
The crime of riot in part draws it seriousness from the combined actions of those within the group and the dangers of such group activity. It is not particularly profitable to focus purely on the individual acts of a given player. I adopt the references in the Chief Judge’s sentencing remarks in Luca as to the legal principles that come in to play here. See para 15. The offence of riot is a very serious offence deriving its gravity from the numbers involved and the use of numbers to achieve the purpose. It involves public alarm because it is potentially dangerous and there is the inherent danger of injury to persons or property.
The level of violence used and the scale of violence are relevant factors and it is wrong in assessing the individual culpability of an individual participant to take the acts of that individual in isolation. That is because the acts of the individual were not committed in isolation which is the very fact that constitutes the gravity of the offence of riot. A person who participates in riot bears some responsibility for the collective damage and harm caused. I am though required to take into account the extent to which you are to blame and the part that you played. It is plain that general deterrence should be given great weight in the sentencing task. It is serious indeed where the rioters act against law enforcement officers. Here of course we have got a prison setting where we have got people doing their job, trying to maintain the good order of prisons, so the prison setting here requires significant weight to be given to general deterrence.

The offence for which I am passing sentence follows a trial. The trial was conducted sensibly at least by both of your counsel, with appropriate concessions made and no mucking around. I have found the existence of remorse in some cases where a trial has been conducted, for instance in a dangerous driving causing death case. However here I am not able to find the presence of any great remorse. I am not satisfied on the balance of probabilities that there is any great remorse.
Nor though do I sense that either of you in any way is revelling in the event which took place and the ultimate damage which was caused. You held back from engaging in the property damage. This was a fast moving event which ran wildly out of control and I am not left with a sense that either of you are happy with the ultimate outcome. Your interviews suggests otherwise. I sense that you probably have some regret even for your own conduct and I take that into account.
I have to exercise a sentencing discretion. I must take into account a large range of factors, including the maximum penalty and the impact of the crimes. Also the nature and the gravity of the offence. I have dealt already with your specific acts and what I judge to be the low level role.
On the topic of the gravity of the riot generally, there is no dispute that the riot represented a very serious example of that crime. I adopt the statement of the circumstances of the overall offending at paragraphs 2-10 (Luca) repeated at paragraph 7 of Kumas) as well as the Chief Judges reasoning in paragraph 17 of Luca. Here we have the sheer scale, duration, setting in a prison, scale of destruction and damage, acts directed against prison officers or people seeking to restore order and the sense of total anarchy promoted. These various matters rank this as an extremely serious offence overall when considering the offence of riot.
I have already commented on your relatively low level engagement. The absence of any role in planning, or organising or leading, the absence of property damage, physical attack or incitement. There were very many who were far more invested in and enthusiastic and energetic in their acts. Still your offending is serious. Riot is a serious crime and it is no answer to say you were “only” assisting or encouraging. That is not mitigatory at all. You were doing that intentionally.
You must be punished for your conduct, though my obligation is to do that justly and proportionately.
This court must also denounce this serious offending. That is a significant purpose of sentencing and I do denounce your conduct
I need to deter you from offending in the future. You each must be dissuaded from ever contemplating committing this sort of crime in the years ahead. You are both still housed in prison and will be for some time. You must be deterred from joining such activity should it arise in the future. However I do not believe specific deterrence is a particularly significant matter in this exercise.
I have to take into account your prospects of rehabilitation. As I have said, I can only be relatively guarded at this stage. I believe you have some realistic prospects of rehabilitation if, and it is if, you put in some real effort. I cannot put it higher than that.
I must also pay regard to the need to protect the community from you. I do not believe that is a significant sentencing purpose in this case.
However given the nature of the offence and the setting, I must pay very strong regard to the principle of general deterrence in this case. By general deterrence, I mean this court’s obligation to send a loud and clear message to other people that offending such as yours will simply not be tolerated. The message must be loud and clear coming from these courts. Prisoners choosing to join in or encourage or assist a riot in a prison setting will be dealt with sternly.
You do not have one of the major sentencing benefits that apply to the various other people already dealt with for this crime. They all pleaded guilty and received a clear and defined benefit as they were bound to. That is the law. Those benefits were sizeable as they clearly should be, but of course they have no application here at all. You have each chosen to run a trial. It was your right to do that and you are not to be punished for exercising that right. It was conducted sensibly as I have said, but it follows that there are sizeable mitigatory matters that applied in the other cases that simply have no application at all in your case.
Your offending was serious. It demands a substantial term of imprisonment in my judgment. I have no choice at all but to pass a term of imprisonment upon each of you.
I do not believe that it is open to me in your case to pass a combination type order, Mr Connelly. The offending is too serious and I can hardly ignore the chronology of offending and your past failures to abide by Court orders including community corrections orders passed in combination with prison terms. Nonetheless, as you will learn, I will provide for a very decent, some may say overly generous gap between the head sentence and your non-parole period. Whether you will be released on parole is not for me to consider. It is entirely in the hands of the Adult Parole Board but I am least giving them the ability to consider releasing you sooner rather than later and I do so for a variety of reasons that I have canvassed already including the efforts made on the most recent community corrections order and the significant periods in custody spent since the riot offence in 2015, not to mention your custodial predicament.
In your case Mr Murphy there is the obvious restraint provided by the strong pull of the totality considerations and the sentenced that you are serving currently.
Totality is in my judgment a sizeable consideration in each case.
It is I suppose possible that some of those many who have pleaded guilty and been dealt with already may look at the sentences I am about to impose following a trial setting and then look at their own sentences following their own guilty plea and query what benefit they received in pleading guilty. To any in that position, all I can say is that the sentencing judge in each of those other cases has indicated by the 6AAA declaration the actual dimensions of the benefit which they actually obtained in pleading guilty.
It would however be quite wrong for me to simply latch on to those 6AAA declarations made in those other cases and then apply them across to your cases in a mathematical exercise. That is not my task at all. I have spoken already of the dangers of such an approach as discussed in the Court of Appeal decision of Perri.
If the complaint from others be that the sentences that I am passing and/or their practical effect appears closer to the dimensions of some of the sentences passed upon some who actually pleaded guilty, well I can make no apology. It should not be forgotten that I am dealing with people years after the event, prisoners with a number of sizeable issues thrown up by the issue of totality. If I focussed on the pure mathematics of the other sentences to the exclusion of (1) the personal circumstances in your cases and (2) the strong pull of totality in this sentencing exercise, my end numbers would plainly be far higher. But that is exactly what I must not do. After all I have to pass an appropriate sentence upon each of you. Totality is a significant consideration in these two cases. The Crown accepts that it is.
I will have you each remain seated I think in the circumstances rather than having you rise and I will deal with your firstly, Mr Murphy. Wait until the end I think so you will have an understanding as to what this sentence actually translates into because my obligation is to pass a sentence for the crime of riot obviously, to then make a judgment as to the extent to which there should be cumulation upon your current head sentence and then I have got to fix a new single non-parole period, so you will get to the end of that and then you will understand the practical effects of the orders that I am making.

Sentence
Murphy

Mr Murphy on the charge of riot I convict and sentence you 18 months imprisonment.
I direct that 10 months of that sentence will be served cumulatively upon your existing head sentence.
You have already served a significant portion of the sentence imposed by Judge Wilmoth. Of course you get the benefit of the time that you have served already. I must pursuant to section 14 of the Sentencing Act fix a new single non-parole period. What is critical is that I make it clear when it is that the new single non-parole period commences. There are two ways of doing this, either backdating it to the date of Judge Wilmoth’s sentence or commencing it from today’s date. I am very much awake to the views expressed by Justice Brooking in the case of R v Rich (No 2) [2002] VSCA 0017. He took the strong view that uniformity was desirable and that the new single non parole period should commence on the day it is actually fixed. I have adopted that approach in the past in a number of cases and then run into very sizeable problems with the interpretation of the order by the authorities. In any event, what is critical is that there is certainty as to when it commences and I will provide that in these reasons. I fix a new single non-parole period of 4 years and 8 months. That new single non parole period will commence on 20 June 2017, the day upon which you were sentenced by Judge Wilmoth. My intention therefore is to add a period of 8 months to your earliest parole eligibility date which I achieve by fixing this new single non-parole period. There is no pre-sentence declaration required in your case.
Connelly
In your case Mr Connelly, on the charge of riot, I convict and sentence you to
18 months imprisonment. I fix a non-parole period in your case - I do not have to but I believe it is appropriate to under the relevant provisions, of 8 months. Now of course there is no such thing as a ‘usual’ non-parole period. Having said that though, I recognise it is actually quite unusual to fix such a low non parole period especially in a setting where there are very guarded views held as to your future prospects of rehabilitation. However I do so here for the reasons I have announced earlier in these reasons including the increased custodial burden I have commented on.

Section 18

In your case Mr Connelly, you have been in custody on this matter for a period of 186 days. That period of pre-sentence detention, which has been served already, is to be noted in the records of the court. It means that it is really not too long until the Adult Parole Board can at least consider whether you should be released on parole. As I have said, that decision has nothing to do with me and I cannot speculate about it, it is their job. You should take such steps as are required to bring the matter before them, but that is a matter ultimately for you.
Now, are there any other matters I need to deal with at all? Are there any other orders that I need to make, Mr Hayward, or Ms Casey or Ms Lynch?

Note: At His Honour’s direction, the discussion below was retained to avoid any issue as to misinterpretation.

MR HAYWARD: Not by way of order, Your Honour.
MS CASEY: No, Your Honour.
MS LYNCH: No, Your Honour.
HIS HONOUR: You each understand the nature of those sentences and you do not need me to repeat them at all or not? I am happy to if you want.
MR HAYWARD: I just want to clarify this. The single non-parole period for Murphy commences on 20 June 2017?
HIS HONOUR: Yes.
MR HAYWARD: I am just conscious of the fact that when he was sentenced on that date, 20 June 2017, there was pre-sentence detention declared on that date.
HIS HONOUR: Yes, he gets all the benefit for that and he has been serving it. There is no need for me to make any declaration. I think there was a case of Stares I think it is. What is your concern?
MR HAYWARD: My concern is that I have not had time to quickly do the maths but as I understand it Your Honour's intention is essentially to add eight months to the non-parole period?
HIS HONOUR: Eight to the non-parole period, ten to the head.
MR HAYWARD: If Your Honour would please I would just like a bit of time just to make sure that Your Honour's intention has been carried out through this.
HIS HONOUR: I have approached it in the other direction before and obviously if I was fixing it to commence today I would need to totally revise all of these numbers and work out the sums in that way. I have done that in the past and I have run into massive troubles in terms of the authorities. I do not think it can be simpler than saying he was serving six years with a four, he's now serving a head sentence of six years and ten months with a non-parole period of four years, eight months.
MR HAYWARD: Yes, Your Honour, however he was serving six years with a four but in effect that four was backdated to 15 April 2016.
HIS HONOUR: He gets the benefit of that. There is no need for me to make any declaration in terms of his pre-sentence detention.
MR HAYWARD: No, I understand that.
HIS HONOUR: As he sits there at the moment - until a moment ago he had a six with a four. He does not have a six with a four anymore. I am cumulating ten months on top of the head and I am adding to his eligibility by fixing that new single non-parole period.
MR HAYWARD: If Your Honour would just grant me a little bit of time to figure out what date ends four years and eight months post 20 June 2017?
HIS HONOUR: Yes, of course. But I had the lapse dates.
MS LYNCH: Your Honour, I think I understand what Mr Hayward is saying is that if Your Honour starts the non-parole period from the date of sentence it will not take into account the pre-sentence detention, it would be that Your Honour would have to start the non-parole period from the date of remand.
HIS HONOUR: He gets the declaration. There is no need for me to make any declaration. The authorities will administer it by doing that. That is the impact, I think it is the decision of Stares. I am doing what I am doing to try and avoid the problems I have had by doing the alternative. The alternative is I fix a new single non-parole period commencing today and then obviously tailor it to achieve the same purpose. I can do that, but as I say I have done that in the past and I have then had those in authority say there is no pre-sentence detention because I have fixed it starting as of today.
MS LYNCH: No, the only difference would be is that Your Honour cannot declare the pre-sentence detention but Your Honour would effectively cause it to be taken into account if Your Honour starts the non-parole period from 14 April 2016, the day of remand, because the non-parole period would then run four years, eight months from there which would mean it would overtake Judge Wilmoth's sentence.
HIS HONOUR: Can I assure you I am not doing this in a lazy fashion. I have spent some time considering what is the best way of approaching it. I must say I had not considered that issue but I have had some dealings with the authorities in relation to this case with the interpretation and the stance I am taking and it will lead to it being interpreted in the way that I am told.
MS LYNCH: Your Honour is very clear about the sentence so if it in fact means anything different - - -
HIS HONOUR: If there is ever any issue you swing it on back before me.
MS LYNCH: Yes, I think that is probably the way to deal with it.
HIS HONOUR: But I am damned if it do and damned if it don't. I have got the strong comments of Justice Brooking saying fix it from the day that you pass it. But I have done that and I have done it four or five times in the past and had all sorts of hell as a result of it. I am approaching it in this different way having spoken or had my associate deal with Corrections and gain an understanding as to how they will be interpreted and this is as I perceived it is the best way of avoiding it being misinterpreted.
If it appears at any stage that it is being misinterpreted that he does not get the benefit of the pre-sentence detention prior to that date in June then you will be back in front of me and I will deal with it.
MS LYNCH: Yes, and I am comforted that Your Honour has already made those enquiries.
HIS HONOUR: I will make a note of all this and our discussions, and the sentence is explicit as to what my intended effect is. If it is being given a different effect then I will come back in at some stage with the parties before me and deal with it again.
MS LYNCH: As Your Honour please.
HIS HONOUR: The order I sign will direct that a new non-parole period of four years and eight months is fixed in respect of this sentence and the sentence the prisoner is currently undergoing. So it is explicit and I have been explicit and you all know what I am intending. Your client knows what I am intending or he will when you explain it in more detail, but I am cumulating ten on the head sentence and I am fixing a new non-parole period of four years and eight months in relation to all the sentences that he is currently serving.
My intention, as I have said explicitly, is to add a period of eight months to his earliest parole eligibility date. I have been told when that was and I think it is 15 April 2020 so jump ahead eight months and that is what I am intending. In the event that there is any sort of mishap I am happy to revisit it at any stage. But as I say, I am told by the sentencing records crowd that this is the way that they prefer it to be done.
They are against Justice Brooking and I will do whichever is going to lead to the ultimate sentence being correctly interpreted, but I have tried the other version and it has not been a great hit so I will try this one and in a way, for your client slipping in a new single non-parole period commencing at a later date can be confusing for him as well - anyway see how it goes.
Mr Hayward, did you want more time to consider it or not?
MR HAYWARD: No, I am very grateful for those indications and clearly enough through this discussion your intention is - - -
HIS HONOUR: My intention is as clear as I can make it in terms of if I was fuzzy about the commencement date then that would be unsatisfactory but I am saying, no, it is commencing back then and it is being fixed in respect of this sentence and the sentence the prisoner is currently undergoing. That sentence he is currently undergoing he has the benefit of the pre-sentence detention in the lead up to that sentence being imposed on 20 June.
So as I say I could not be more explicit. You all know what I am intending to do. If it so happens then that contrary to what I have been told the people who are administering this treat it differently and he finds himself looking at a much later eligibility date then you will not be shy about coming back in front of me.
MR HAYWARD: Thank you, Your Honour, I am grateful.
HIS HONOUR: You are all content with that?
MR HAYWARD: Yes.
HIS HONOUR: Any other orders I need to make at all or not?
MR HAYWARD: No, Your Honour.
HIS HONOUR: That is Mr Murphy's position. From your perspective, Ms Casey, that is a straightforward sentence. There is no complication there. It is an 18 month term with a non-parole period of eight plus the pre-sentence detention that he has already done. No other matters then? You are due elsewhere I think, Ms Casey. I will sign the orders down in chambers.
Again, thanks all of you and you as well, Mr Hayward, and your leader as well and thanks for you, Ms Casey and Ms Lynch, for the sensible way that you at least all conducted the trial. It was less sensibly conducted by counsel for the co-accused. That completes the matter. Are you going to go down and see your client just briefly, Ms Casey, or what do you want to do?
MS CASEY: I literally can't. If I may just approach him in the dock?
HIS HONOUR: You go down there and do that now and then you better run by the sounds of it.

MS CASEY: Thank you, Your Honour.
HIS HONOUR: You will go down and see your client, Ms Lynch?
MS LYNCH: Yes, Your Honour.
HIS HONOUR: That completes the matter then. Mr Murphy and Mr Connelly can be removed, thank you.

[2019] VCC 238

5 March 2019