Director of Public Prosecutions v Owens

[2018] VCC 59

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00548

DIRECTOR OF PUBLIC PROSECUTIONS

v

COLAN OWENS

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 February 2018
CASE MAY BE CITED AS:	DPP v Owens
MEDIUM NEUTRAL CITATION:	[2018] VCC 59

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 with Mr G. Hayward
For the Accused	Mr A. Waters

Pages 1 - 8

 

 

HIS HONOUR:

1Colan Owens, you have pleaded guilty to one charge of riot.  You have admitted your criminal history, it is a lengthy document.  There is a gap from 2015 to a recent arrest in December of last year for which you are now on remand. 

2Your counsel put on instructions that a potential reason for the alleged offending or the circumstances of it is because this matter, the riot, was hanging over your head.  I have no material before me to enable me to come to any conclusion as to those instructions. 

3Fourteen victim impact statements were tendered but not read out.  I have read them and taken their contents into account.  They reflect the concern Corrections staff had for their personal safety during this riot.  The facts of the matter are set out in Exhibit 1, the prosecution opening. 

4I will not now repeat the facts in any great detail.  Part B of the opening was read out, it detailed, particularly, your actions in relation to the riot.  Any reader of these reasons can refer to that exhibit in its total context, to place the sentence in its full factual context.  Apart from what was discussed during the course of the plea, what was set out in the summary was not disputed by your counsel. 

5Briefly stated, after a number of protests at the Melbourne Remand Centre relating to the ban on the provision of tobacco products on 30 June 2015, approximately 200 to 300 prisoners in the Melbourne Remand Centre were involved in the largest riot in Victoria's correctional history.  It took 15 hours for prison officers, police and fire brigade personnel to restore order to the prison and secure all prisoners.  By 11 pm, the rioting prisoners began surrendering.  A large number of prisoners then had to be relocated to other prison facilities as large parts of the MRC were no longer operable. 

6Your role in the matter, as I have stated, is specifically set out in part B of the prosecution opening and in paragraph 5 of the prosecution's submission on sentence.  In essence, that conduct involved you driving a tug vehicle at least to the edge of a lit bonfire.  You then directed another prisoner, one Barnes, to push the tug into the heart of the fire by the use of another vehicle.  You were subsequently at the front of a group of prisoners who attacked the CMC  however you do not physically join in. 

7I accept you were not an organiser or leader of the riot.  You told psychologist, Mr Jeffrey Cummins, that you involved yourself as you thought you would get picked on for not being so involved.  Of course, you went much further than just being a passive member of the rioters by your spectacular individual act of driving the tug in the manner I so described, which resulted in substantial damage to that vehicle. 

8In sentencing you, I do not just take into account your own actions but consider the scope of the riot.  As has been discussed during the plea, the chief judge in the case of Luca, cited in this court on 24 October 2016, set out the relevant sentencing principles for riot. 

9At paragraph 15 of his reasons he said, "In assessing the culpability of an individual participant it's wrong to take the acts of the individual participant in isolation.  That because the acts of the individual are not committed in isolation and that is the very fact that constitutes the gravity of the offence.  A person who participates in the riot but bears some responsibility for the collective damage and harm caused.  However, a 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."  I adopt the Chief Judge's reasoning in respect of that. 

10The Chief Judge acknowledged, as I do, that great weight should be given to the consideration of general deterrence for the offence of riot, so that sentences must make it less likely in the future that others will join in the riot.  I adopt His Honour's categorisation and denunciation of this riot at the Melbourne Remand Centre as expressed in paragraph 17 and 18 of his reasons. 

11His Honour said, and I repeat, "This riot was a very troubling disturbance of a very high order, measured either by the number of participants involved and the fact that the rioters acted against law enforcement or prison officers and a number of personnel required to restore order to the prison and secure the prison, the sense of complete anarchy and a breathtaking scale of damage and loss actually caused."

12One of the issues I have had to consider in sentencing a number of these rioters is the issue parity.  Looking at that issue, I have not delved into a minute examination by way of comparison of your behaviour with those or of other rioters.  The cases that I have looked at are useful comparisons to assist me here in my sentencing process. 

13The prosecution submitted that your role, by comparison for example with
Mr Luca, was a lesser one than his.  The Court of Appeal has considered this question of parity and particular comparison with Mr Luca in the case of Kumas [2017] VSCA 287. That was an appeal from the decision of His Honour Judge Allen of this court and I adopt the principle set out in that as to how I should consider parity and, in particular, in sentencing for this riot and I have looked at Luca in the same way that the Court of Appeal has urged me to.

14In paragraph 39 the court said, "In our view, it was understandable and entirely appropriate that the sentencing judge looked at the sentence imposed in Luca, it being the first in a series of offences imposed and to be imposed on the large number of prisoners who took part in the MRC riot.  Indeed, in order to be faithful to the principle of parity in the circumstances, the judge had no option but to do so." 

15The Court of Appeal, however, made it clear that the particular circumstances of each of the rioters is a very important factor of the sentencing processes. 

16On your behalf, Mr Waters filed written submissions and supplemented them orally.  He tended a report of Jeffrey Cummins, clinical and forensic psychologist dated 13 December 2017 and two certificates in relation to a managing emotions program and an managing loss program that you have attended in January of this year whilst in custody.  I have taken that your attendance at those programs into account when considering the issue of rehabilitation.

17In mitigation, Mr Waters relied on, your person background and circumstances, which he set out in some detail in his plea submissions, as did Mr Cummins in his report.  Briefly stated, you were born in Shepparton.  Your parents separated prior to your fourth birthday.  Your father had been abusive towards your mother. 

18Your mother re-partnered when you were approximately ten years of age.  A stepfather became involved.  You were sexually abused at the age of 11 by a family member.  You began using alcohol and cannabis in your early teens which subsequently, you elevated your substance abuse to alcohol, cannabis, amphetamines and pills at around the age of 16.  You used the heroin for a short time when you were aged 17 and 18. 

19In respect of your drug issues, Mr Cummins, after being in conference with you, had doubts about whether you actually thought you had a drug problem.  He said in paragraph 37, "In my opinion, his level of insight into his own overall life and his current level of psychological functioning is limited.  Further, in my opinion, his comments about not being psychologically dependent and/or psychologically dependent on cannabis or amphetamine appear to be quite unrealistic, given the history provided by him." 

20In paragraph 45 he said, "On the basis of my assessment of Mr Owens, his prognosis is guarded.  In my opinion, it's very probable that he uses illicit drugs as a means of mood regulation, although as indicated above, his insight into these matters appears to be very limited."  He diagnosed you with an antisocial personality disorder with some elements of a borderline personality disorder and a narcissistic personality disorder. 

21Your counsel submitted that your role in the offending was a limited role. 

22In relation to your prior history, three, he submitted that there was a gap from 28, 2015 until your recent problems in December of last year and pointed to the fact that not only have you attended those two programs in custody but generally while you are in custody, you obtain employment as a billet. 

23He referred me to the issue of delay and set out a chronology of the progress of the matter through the court system, it cannot be put because of the pending matters that rehabilitation played a great part in the delay.  Some of the delay is due to your own fault, some of it is due to the progress of the matter through the courts.  I accept on that issue that the matter has been hanging over your head since you were charged. 

24He submitted that because of the various places you have been whilst in custody some hardship has been caused.  I think one of them is not due to your involvement in this matter and I've taken that into account.

25Importantly, you have entered a plea of guilty at an early stage and that entitles you to a discount because it saves the court the cost and the time of a jury trial and it shows an acceptance of responsibility by you for your behaviour and, seven, he submitted that you had reasonable prospects of rehabilitation. 

26I have taken into account all of those submissions and those of the prosecutor and, in particular, (1), your plea of guilty; (2), I have carefully considered the issue of parity and looked at the cases, the chart of the cases and summary that your counsel has provided and I have, in fact, reread my reasons in the cases of Ouden and Putras; (3), I accept your role was limited but, as I have described, it was individualistic and spectacular and resulted in substantial damage to a vehicle at the gaol; (4), the issue of delay and I have just referred to that; (5), in respect of your prospects of rehabilitation, I am very guarded as to those, looking at your criminal history and looking at the comments that
Mr Cummins has made in his report. 

27Basically, you are aged 45, you clearly have a drug issue.  You probably have issues in relation to anger management and you just have to do something with your life when you come out of it.  Now, when you are released from gaol, I would be guessing as to whether you are able to do something about that or not. 

28Taking all those factors into account, I have arrived at this sentence and because I somewhat clumsily come to conclusion of 15 and a half months with a non-parole period of eight and a half months, I am told I have to express that in days. 

29It is 469 days with a non-parole period of 257. I declare, pursuant to s.6AAA of the Sentencing Act, if you had proceeded to trial and you were convicted by a jury, you would have received a sentence at least in the order of six years with a non-parole period of four.  Are there any other matters I need to make or matters I need to consider?

30MR GILLIGAN:  No, Your Honour.

31HIS HONOUR:  I forgot to put in my normal phrasing so I better put that in about why you get sentence and how you get sentence.  The basic purposes for which a court may imposed a sentence of punishment, general deterrence - that is to deter other people from committing this crime - specific deterrence, that is to try to get into your mind not to reoffend, rehabilitation, denunciation and protection of the community. 

32In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any - in this case there are many.  I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community, to seek to ensure, as far as possible, offenders are rehabilitated into society.  I express my denunciation of the behaviour.  Does anyone object if I stick that in the appropriate place in my sentencing reasons?

33MR GILLIGAN:  No, Your Honour.

34HIS HONOUR:  All right, thank you.  You can take Mr Owens out, thanks.  I only have one more of these, do I not?  The one from ‑ ‑ ‑

35MR GILLIGAN:  I wish I could say the same, Your Honour. 

36HIS HONOUR:  The one from Monday which ‑ ‑ ‑

37MR GILLIGAN:  Is that Abdullah?

38HIS HONOUR:  Yes, the bloke who broke the door.

39MR GILLIGAN:  Yes.  No, no, that was Woods.

40HIS HONOUR:  Was it?

41MR GILLIGAN:  Yes, Woods broke the door.

42HIS HONOUR:  Yes.

43MR GILLIGAN:  This is another one that was a part of the trial but turned into a plea.

44HIS HONOUR:  I do not think I have got that. 

45MR GILLIGAN:  All right.

46HIS HONOUR:  I think Judge Hannan might be doing that.

47MR GILLIGAN:  She is doing the trial, I know that much - Your Honour is.  But I am not sure about Monday.  It is an (indistinct) matter.

48HIS HONOUR:  Well, it is not listed in front of me at the moment.

49MR GILLIGAN:  All right. 

50HIS HONOUR:  All right.  Thank you.  How many more to go are there for you?

51MR GILLIGAN:  There is a few more pleas and there are, I think three or four trials involving two or three heads, so yes, it has not ended yet.

52HIS HONOUR:  Better you than me, I say.

53MR GILLIGAN:  Yes, thank you, Your Honour.

54HIS HONOUR:  Adjourn the court till 10 o'clock on Monday.

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