Director of Public Prosecutions v Phillips

[2017] VCC 1277

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00797

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA PHILLIPS

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 August 2017
CASE MAY BE CITED AS:	DPP v Phillips
MEDIUM NEUTRAL CITATION:	[2017] VCC 1277

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 Gilligan
For the Accused	Mr L. Dean

HIS HONOUR: 

1Joshua Phillips, you have pleaded guilty to one charge of riot.  The maximum penalty for this offence is ten years' imprisonment.

2You have admitted your prior convictions.  Your prior criminal history is extensive, although I note a gap in your offending between 2006 and 2011.  I also note that all of your matters have always previously been dealt with in the Magistrates Court.  I shall return to the question of your criminal history and present sentence later in these remarks.

3The Crown tendered a summary of prosecution opening as Exhibit A, which provided an extensive overview of the course of the riot in general and of your participation in it.  On 24 October 2016, His Honour Chief Judge Kidd sentenced another offender, Jonathan Luca, for his participation in the same riot.  I adopt from those sentencing remarks the overview of the events that occurred on
30 June 2015:

"On 30 June 2015, 200 to 300 prisoners at the MRC were involved in the largest riot in Victoria’s correctional history.  Evidence indicates the protest by prisoners on 30 June 2015 was planned, with the intent of disrupting the routine of the prison to force authorities to suspend, amend or reverse the 'no smoking’ policy. A total smoking ban was due to commence in Victorian prisons on 1 July 2015. Peaceful protests were to occur.

During the riot, fences were breached, prison vehicles, including the use of
a tractor, were used to cause damage to gates and fences.  The Central Movement Control, which I will refer to as the "CMC", was stormed twice, the canteen was looted and multiple accommodation and non-accommodation units were significantly damaged.  That damage included the use of makeshift weapons to smash windows, 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."[1]

[1]DPP v Luca [2016] VCC 1573 at [4] – [10].

4The net effect and scale of the riot was vast.  The riot itself was marked by prisoners doing the following things:

·Tearing down and breaching security fences;

·Disguising their faces to avoid identification and detection;

·Using metal bars and other items, such as weapons;

·Looting the canteen and property of prison officers;

·Throwing items at prison officers who were trying to restore order;

·Engaging in widespread property damage;

·Using prison vehicles to damage property; and

·Threatening and taunting officers.

5For their part, the prison officers:

·Were forced, along with public servants and contractors, to flee from various parts of the prison;

·Repelled the attacks with riot gear and tear gas;

·Used personal protective equipment and breathing apparatus;

·Suffered physical injuries through chemical inhalation and through some of the interaction with prisoners; and

·Suffered psychological injuries to varying degrees which, for some staff members, are still ongoing.

6I have already said something of the direct cost of repairs and maintenance caused to the State by the actions in which you participated.  On top of these were the many hidden or indirect costs which go beyond prisoner movements and relocations and extend to the administrative burden the riot caused. Furthermore, there was a huge operation undertaken to identify those involved in the offending.

7Your offending is outlined in the summary of prosecution opening.  It was, in part, captured on the prison’s CCTV footage.  A summary of your role is as follows:

·Your part in the offending lasted from just after 11:40 am until about
3:30 pm;

·You were part of the first mob of prisoners who approached the CMC before it was attacked for the first time;

·You disguised yourself prior to the first breach of the CMC;

·You moved with other prisoners through the CMC into the canteen;

·After entering the canteen, you consumed items which had been stolen from it;

·You moved back through the CMC and congregated with other prisoners into Area 2 after teargas was deployed in Area 3;

·You watched on with other prisoners as another prisoner used a tractor to breach the fences between Areas 3 and 4;

·You assisted by the use of an allen key in the liberating of five prisoners from their cells in the Billingham unit.  This, in turn, added to the swelling mass of prisoners taking part in the riot; and

·You entered an office within the Billingham unit which was reserved for prison officers.

8Although you were observed with another prisoner in the Billingham unit at
4:40 pm and although you are seen in the management office at about
8:04 pm, it is not alleged that you were still otherwise contributing to the rioting conduct.

9On 27 November 2015, you participated in a record of interview.  You made some admissions to participating in the riot and said that it had started as
a protest, but it got out of hand.  When you were asked why you participated in the riot, you said you were locked out of your unit.

10You had been remanded in custody in May 2015 and were still on remand as at 30 June 2015 when the riot occurred.  You were charged with this offence on 23 December 2015 by summons.  On 6 February 2016, you were released from custody after completing the sentence imposed in relation to the original remand matters.  On 29 July 2016, you failed to appear at the committal mention for this matter.  You were remanded in custody again on 21 April 2017.  On
28 April 2017, you entered a plea of guilty to the charge of riot.

11I have been provided with 14 victim impact statements as Exhibit B, from prison officers at the MRC.  None of the injuries or difficulties they have suffered are directly attributable to your conduct.  Many, however, have suffered ongoing difficulties in their professional and personal lives.  It is apparent that the stressful effects of the riot will be felt by them, to varying degrees, for some time to come.  It is apparent that the actions of you all have taken a toll on staff who were exposed to your criminal acts.

12I turn now to your personal circumstances. 

13You were born in Warrnambool in December 1984 and you are now 32 years old.  Your parents separated when you were approximately two years of age. Your mother remarried.  Unfortunately you had a poor relationship with your mother and step-father.

14You have an older brother with whom you have no contact and two half siblings with whom you have only limited contact.

15Due to the poor relationship with your mother and step-father, you left home to live with your father when you were aged 12. To that point, you had had very limited contact with your father.  Regrettably, this arrangement lasted only
a short time.  After you left your father’s house, your accommodation remained both tenuous and unstable until you were 19.  You often stayed with friends and couch surfed.

16You had considerable difficulties at school.  These are documented in the reports of Dr Linda Borg and Ms Carla Lechner.  There is support for the opinion that you suffered from ADHD at school.  In any event, you left school after
Year 9 and it appears that your education has provided you with almost no literacy skills.

17After leaving school, you had some months working as a butcher and you have had some experience of working as a concreter.  You have not worked since 2015.  I note that you hope to open a business as a concreter upon your release from prison.

18You started binge drinking alcohol at the age of 12 and you were drinking daily from the age of 15.  You also started using cannabis at that age and smoked it almost every day until you were remanded in custody in April of this year.  You commenced using speed (amphetamines) at the age of 15 and quickly started using it on a daily basis.  In 2013, you started using ice.  You were candid in telling the neuropsychologist, Dr Borg and your lawyer, Mr Dean, that your drug use recommenced after your release from prison in February 2016 and continued until you were remanded in April of this year.

19It was submitted by your lawyer that your prior criminal history was driven by the desire to obtain money to feed your drug addictions, or was otherwise generally related to your drug use.  An examination of your prior criminal history seems to bear this out.  Although all of your previous offending has been dealt with in the Magistrates Court, it should be noted that some of your offending has been very serious indeed.  You have prior convictions for robbery, unlawful assault, intentionally damaging property, criminal damage and trafficking cannabis.  You have served three previous periods of imprisonment, usually for an aggregate of offences and you have been dealt with by the courts for breaching a suspended sentence, failure to comply with a CBO and failure to answer bail.

20It must be noted from the criminal history sheet that you were not convicted of any offences for a period of about five years, between 2006 - 2011.  Mr Dean told me that this marked a period of relative stability in your life.  Mr Dean submitted that I should have some confidence from this period of stability and from your compliance with a previous parole order, that you do have prospects for your eventual rehabilitation.

21When you were in your early 20s, you commenced a relationship with young woman, with whom you have two children. The boys are now aged ten and six. You separated from their mother in 2015.  You told the psychologists that the oldest boy has been diagnosed with autism.  The younger boy has also been diagnosed with autism, has a demonstrated low IQ and oppositional defiant disorder.  The boys do not live with their mother, but with their maternal grandparents.  It appears you maintain some contact with them.

22Since 2016, you have been in a relationship with your new partner, Carly.  Your new partner attended court to provide you with support.

23Since your return to prison, you have completed a number of courses.  What makes these courses more impressive is that you completed a number of units in working with the personal computer, word processing applications, use of digital devices, working with spreadsheets and other document based units.  In addition to that, you have completed a number of other practical vocational units which will provide you with skills that you can build in the community.

24It must be said that you have used your time in prison constructively.

25In the course of the plea, Mr Dean tendered two reports. The 1^st was the neuropsychological report of Dr Linda Borg. This is a significant piece of work as it represents the 1^st time you have been comprehensively examined by a neuropsychologist.

26Dr Borg considers that you suffer from cognitive deficits secondary to the combined effects of ADHD, a borderline – low intellectual functioning, low literacy skills and low educational attainment. These difficulties are compounded by your long-standing alcohol and ice use. Further to this, it appears you suffer from moderate depression and considerable anxiety; although the anxiety appears to be exacerbated by your imprisonment, these charges and the enforced abstinence from drugs.

27In Dr Borg’s opinion, the effect of this is that you are overwhelmed by large bodies of information. Further, you have few skills to plan for or overcome difficulties that confront you.

28All of this means (in Dr Borg’s opinion) that because your intellectual capacity is impaired, you make decisions based on your immediate environment rather than a more objective, intellectual and reasoned consideration of factors and consequences.

29You told Dr Borg that you became involved in the offending because “everybody else was”. This rings true when measured against the factors I have just outlined. Nevertheless, Dr Borg considered that you have insight and displayed remorse as to the wrongfulness of your actions during the riot.

30Mr Dean also tendered a report from psychologist Carla Lechner. This report reinforces the conclusions made by Dr Borg. I note Ms Lechner’s report was available and referred to in the report of Dr Borg.

31In his submissions during the course of the plea, Mr Dean submitted that the 1^st, 2^nd and 3^rd principles of Verdins were enlivened.

32I note at this point that in his submissions after considering the plea material, Mr Gilligan on behalf of the OPP submitted that in light of the neuropsychological report of Dr Borg and the psychological report of Ms Lechner there should be some moderation of general deterrence (the 3^rd principle in Verdins). Mr Gilligan submitted that the first two principles were not applicable in this case as the evidence suggests that you remained aware of what you are doing during the course of the riot and that what you were doing was wrong. So much is clear from the record of interview.

33After considering the principles and reviewing the evidence, I agree with Mr Gilligan that there should be some moderation of the weight given to general deterrence in this case.  I do not consider that the evidence in this case and opinion of Dr Borg make it appropriate to conclude your moral culpability was reduced or that your condition should have a bearing on the kind of sentence that I should impose or the conditions under which it should be served.

Gravity of offending and Your role in it

34The serious nature of the offence to which you have pleaded guilty can be seen from simply looking at the elements set out in the charge on the indictment.  That is that:

·    You assembled together;

·    With the intent to carry out common purpose of disrupting the prison;

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

·    That you executed that purpose in a violent manner,

·    So as to cause alarm to another person of reasonable firmness and courage.

35The wording of the charge to which you have pleaded guilty, makes it clear that it would be wrong for me to simply look at your conduct and participation in isolation.  Rather, your acts were not committed in isolation but were part of the acts of 200 to 300, and where over 100 of you have been charged with this criminal offending.  By your participation in the riot, you must bear some responsibility for the collective damage and harm that was caused. Nevertheless, I will take into account the extent to which you were morally culpable for your offending and for the part that you played in the commission of the overall offence.

36Great weight must be given to the principle of general deterrence and denunciation for the offence of riot. The sentence I impose upon you must serve as a warning to make it less likely in the future that others will act in this way.

37The offending in this case is made more serious by the fact that you and your co-offenders as prisoners acted against law enforcement officers in the execution of their duties.  As Chief Judge Kidd said in the case of Luca at [15]:

“the courts cannot permit the law of the jungle to take hold in prisons”.[2]

[2] See also De Castres v The Queen; Kent v The Queen [2011] VSCA 377 at [1], [10], [26]-[36].

38The actions of you all were directly aimed at the law enforcement officers; both in respect of the laws that were made regarding your detainment and in direct and violent opposition to those officers tasked with restoring peace and order to the prison.  In this instance therefore, the prison setting in which the riot took place confirms the importance of general deterrence.  In other words, my assessment of the overall riot is that it was a grave offence indeed.

39The principles of deterrence and denunciation must be met. The community expects those who attempt to instigate ‘mob rule’ by violent and frightening means will be met by stern punishment.

40It is not suggested that you were involved in the planning or organisation of the riot, nor were you a ringleader.  I therefore sentence you on the basis that your participation was not premeditated.

41The Crown submits that your role was less than that of the accused in Luca.  The height of your offending lies in the act of liberating 5 other prisoners

42I accept your role in the offending was considerably less then Luca.

Parity

43In sentencing you for this offence, I must have regard to the overall consequences of the riot and to the principle of equal justice, that is I must take into account the sentences imposed on co-offenders and I must take into account also, so far as they exist, current sentencing principles. Overall, I am satisfied that the objective seriousness of your offending falls below that of Luca. The sentence I will impose on you will reflect my conclusion that your role was less than Luca.

44Against this however, you are considerably older than Luca and you have many prior convictions. Of course, there can never be an equal comparison or matching between offenders. I note that I must balance out all of the different factors in arriving at the sentence that I will impose in this matter.

Plea of Guilty - Utilitarian Effect

45I note your plea of guilty was entered at the earliest opportunity. The parties agree that you should receive credit for the objective utilitarian benefit through the saving of time and resources that would have been associated with running a committal or a contested trial. I consider that there is a utilitarian benefit to your plea in this case. The sentence imposed will take into account your early plea of guilty and the fact that it facilitates the course of justice.

46I further consider that the plea is an indication of some remorse. In the words of Dr Borg, your responses revealed an awareness of your current legal predicament as well as “some appreciation of the wrongfulness of [your] actions”. Accordingly I consider that the plea itself and your other responses indicate some remorse for your conduct.

Lockdown / hardship

47The Crown tendered the affidavit of Jennifer Hosking. I note that after the riots you were initially placed in the 23 hour lockdown at the MRC. On 4 September 2015 you were transferred to Barwon prison on the same regime. From 11 September 2015 the regime was gradually relaxed and you were encouraged to seek work, comply with prison rules and be of good behaviour. By 26 January 2016 the case management review committee noted that you behaved well with prison officers and other prisoners.

48The lockdown regime added considerably to the burden of your imprisonment. Whilst it is true that you were in lockdown because of your participation in the riot, I shall still take into account the added burden that you faced during this period.

49I should note that on your return to prison on 22 April 2017 you were accommodated as a mainstream prisoner with far fewer restrictions than you had faced at MRC and Barwon. In fact you were immediately employed and said to be a good worker. You were recommended to be classified as an essential worker but you were transferred to PPP.

50I also note in this respect that you still present with high levels of stress and anxiety regarding your future. Ms Lechner assessed you as being currently moderately depressed and severely anxious about your future, your imprisonment and the status of your new relationship. Dr Borg endorsed these findings.

51In addition to this, Mr Dean submitted that you are worried the about the effect of your imprisonment on your boys. This, he submits, also added to the burden of your imprisonment. However, as Mr Gilligan rightly points out, your sons are being cared for by their maternal grandparents. This, it appears, has been the case since before your imprisonment. In this way you are not a primary caregiver.

52Nevertheless, I accept that given your low intellectual functioning your depression and your stress levels that your time in prison is more burdensome than it is for others in the general prison population. This should lead to a slight moderation of the sentence I impose upon you.

Prospects for rehabilitation

53Dr Borg stated “without adequate ADHD intervention and support, drug and alcohol counselling as well as psychiatric intervention, it is my professional opinion that the likelihood of reoffending is quite high.” Mr Gilligan submitted that given your history of breaching community orders and a suspended sentence, your prospects for rehabilitation are guarded but that there is a need for structure upon your reintegration into society which is best achieved through parole.

Submission for a combined sentence / CCO

54Mr Dean on your behalf submitted that I should have you assessed for a CCO to be combined with a period of imprisonment for this offending. Essentially, Mr Dean submitted that your long-term offending behaviour results from your long-standing addiction to drugs. Mr Dean then pointed to the report of Dr Borg to submit that this was the 1^st time that you had been comprehensively assessed as to your intellectual and psychological difficulties and strategies suggested which will provide the structure to assist your reintegration back into society upon your release from imprisonment. Further, as indicated by the courses you have completed in prison on this occasion, Mr Dean submitted you are now in a better position than ever before to reintegrate back into the community upon your release. As such, he submitted that you have increased chances of rehabilitation.

55A corollary of this submission was that whilst parole would provide you with the structure, a combined disposition of sentence and CCO would guarantee the availability of the structure upon your release from prison on a certain date. Parole on the other hand is never a certainty.

56As a fallback position, Mr Dean pointed out that you have successfully completed a parole period in the past.

57I consider that the offending in this instance and your role in it must be met by a term of imprisonment. I have decided that the structure of a period of parole would provide a firm foundation for your reintegration back into the community upon the expiration of your sentence.

58Mr Phillips, it will be necessary for you to work hard whilst you are still in prison to co-operate with the prison authorities and to ensure that the parole period is granted. You will need to secure a certain place to live. After that, it is you that must resolve to remain drug-free and to start making the changes to your lifestyle. If you do that and you are granted parole, then the structure of the parole system and the allocation of a parole officer will provide you with the opportunity to reintegrate back into society upon your release from prison with the assistance of the authorities.

Sentence

59On the charge of riot you are convicted and sentenced to 19 months imprisonment. I direct that you serve a non-parole period of 10 months before you are eligible for parole.

60I declare the period of 115 days pre-sentence detention as already served.

6AAA declaration

61But for the plea of guilty (and all things being equal) I would have imposed a sentence a sentence of 2 years and 7 months with a non-parole period of one year and 8 months.