Director of Public Prosecutions v Ray
[2021] VCC 1517
•5 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-17-01472
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN RAY |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 September 2021 | |
DATE OF SENTENCE: | 5 October 2021 | |
CASE MAY BE CITED AS: | DPP v Ray | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1517 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Riot – fail to answer bail
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Luca [2016] VCC 1573, DPP v Barnes [2017] VCC 447,
Kumas v The Queen [2017] VSCA 287Sentence:2 years' imprisonment, non-parole period of 16 months' imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Mr G. Hayward Ms K. Van Den Akker | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Mr B. Nibbs | Valos Black & Associates |
HIS HONOUR:
1 Lachlan Ray, you have pleaded guilty to one charge of riot. The offence took place on 30 June 2015 at the Melbourne Remand Centre at Ravenhall. You have also pleaded guilty to a related summary charge of failing to answer bail on 20 March 2017.
2 The offence of riot carries a maximum sentence of imprisonment for 10 years. The maximum sentence for the offence for failing to answer bail is imprisonment for 2 years.
3 You were arrested on warrant on 30 November 2020 and have been in custody since that date. The prosecution tendered a summary of prosecution opening for plea; no issue was taken with its accuracy by your counsel. It is lengthy and detailed. I shall not repeat its contents but shall incorporate it into these reasons for sentence. I was also provided with a chronology of relevant events and a table of sentences imposed on many of the other participants in the riot, either in this court or in the Magistrates' Court. It will be necessary for me to consider that table to ensure as far as possible, parity of sentencing.
4 The Metropolitan Remand Centre is a 1,006-bed maximum security prison located at Ravenhall near Deer Park in Melbourne's western outskirts. It was opened in 2006 and is predominantly occupied, as the name suggests, by prisoners on remand. It is generally known as the MRC. At the time of the riot the prison held 868 prisoners. In brief summary taken from the prosecution summary and from the reasons for sentence of the Chief Judge of this court arising from that riot[1], what occurred was as follows.
[1]DPP v Luca [2016] VCC 1573
5 On 30 June 2015 200-300 prisoners at the MRC were involved in the largest riot in Victoria's correctional history. Evidence indicated that the protest by prisoners was planned with the intent of disrupting the routine of the prison in order to force authorities to suspend, amend or reverse the no-smoking policy whereby a total smoking ban was due to commence in Victorian prisons on 1 July 2015. Peaceful protests were held by prisoners at the MRC in the days leading up to the riot. During the riot fences were breached, prison vehicles, including a tractor, were used to cause damage to gates and fences, the central movement control (known generally as the “CMC”) was stormed twice, the canteen was looted and multiple accommodation and non-accommodation units were significantly damaged. The 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.
6 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 the physical clashes with rioting prisoners at the CMC. Some staff reported subsequent psychological injuries, such as recurring nightmares and ongoing stress, as a direct result of the threats and fear inflicted by the prisoners.
7 After the riot a large number of prisoners had to be relocated to other prison facilities due to large parts of the MRC being no longer 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 were charged in relation to the riot.
8 I now turn to your involvement, Mr Ray. Prison records show that on the day of the riot you were housed in cell 15 of the Albion Unit which was in area 1 of the MRC. At 11.45 am on that day, there was a call for prisoners to return to their cells for a routine lockdown, but some prisoners refused to do so and gathered where the fences for areas 1, 2 and 3 joined. You were among those prisoners who gathered close to the junction of those fences. Prisoners began pushing and kicking on the fences which separated those areas. A fence between areas 2 and 3 was breached and a gap was forced open in the fence. Soon afterwards, at about 12.08 pm, the fence between areas 1 and 2 was also breached.
9 Prisoners from areas 1 and 3, including yourself, then went through the breached fences and gathered in area 2. You are depicted on the CCTV in area 2 hugging two other prisoners at about that time. You were amongst the group of prisoners who then gathered on the basketball court in area 2. At about 12.11 pm prisoners including yourself then began to move through the breached fence from area 2 into area 3. At this stage some prisoners attempted to disguise themselves by wrapping clothing around their heads. A mob of prisoners including yourself then walked towards the CMC. At approximately 12.16 pm a prison officer photographed you among a crowd of prisoners who had approached and gathered outside the CMC gates.
10 The photograph shows that you had wrapped a t-shirt around your neck. CCTV footage shows that when prisoners attacked the gate leading into the CMC, you were among a crowd of prisoners close to the gates themselves and had wrapped a t-shirt around your face, clearly in an attempt to disguise your participation in the riot. When a door leading into the CMC was forced open prisoners rushed through it. You were not among the first wave of prisoners to enter the CMC; however within minutes of prisoners entering the CMC you also entered, disguised as I have just described. You made your way through the CMC with other prisoners. Some other prisoners had armed themselves with makeshift poles and were damaging the CMC at this stage.
11 Prisoners made their way through the CMC towards the side closest to the canteen. By this stage, many of the prisoners were also disguised. You were among those prisoners, still with a t-shirt wrapped around your face. Prisoners managed to force open a gate leading from the CMC towards the canteen. Prisoners including yourself then went through that bridge gate. A crowd of prisoners then gathered outside the canteen itself, a roller door into the canteen was forced open and you ran towards the canteen. You are shown on the CCTV footage standing outside the canteen among a group of prisoners. You appear on the video to be eating something apparently taken from the canteen. You remained in that area with the group of prisoners as items taken from the canteen were distributed and consumed.
12 You and other prisoners then made your way back through the CMC into the area 3 yard. Video footage shows that you were wearing sunglasses taken from the canteen and were consuming an item taken from the canteen. You were photographed by a prison officer at 12.33 pm among other prisoners in the area 3 yard near the CMC. Prison officers were then able to secure the CMC. Some prisoners realised this and made their way back towards the CMC. Prisoners threw objects at the CMC. Some prisoners found a metal cart and pushed it so that it rammed into the CMC gates. You were among the prisoners who went back towards the CMC at this stage. You were photographed and captured on CCTV holding a pole and still with a t-shirt wrapped around your face.
13 Following this, you gathered with a group of prisoners near the raceway dividing area 3 from area 4, as other prisoners were attempting to breach the fences at that location. Prisoner security personnel then deployed tear gas into area 3, causing prisoners to retreat into area 2. At about 12.49 pm prisoners, some armed and many disguised, forced their way into the Ballan Unit in area 2. You, still disguised and armed with a pole, joined with other prisoners who forced their way into the Ballan Unit. You repeatedly struck the doors into that unit with a pole and others did the same. Once the doors were breached, you and other prisoners flooded into the unit. During the presentation of the prosecution case, a CCTV recording showing your participation in that conduct was played to me.
14 You and other prisoners then went about damaging the interior of the unit and ransacking the officers’ post. Armed with a pole, you went to the officers’ post and repeatedly struck a CCTV camera there as other prisoners caused damage around you. At about 12.55 pm a mob of prisoners gathered at the basketball court in area 2. Prisoners created a makeshift barricade using metal cars, placing them at the end of the raceway where the fences to areas 1, 2 and 3 joined.
15 Prisoners broke into the Attwood, Albion, Burnside and Bellbridge Units between approximately 1 pm and 1.19 pm. At about 1 pm you were among prisoners outside the Attwood Unit in area 1, after the doors of that unit had been breached. At about 1.08 pm you entered the breached Albion Unit. You went to the officers’ post while other prisoners went about ransacking it. You were still disguised and were carrying a breathing apparatus mask. You went to the officers’ post and into the internal areas behind it before leaving the Albion Unit. At about 1.15 pm you ran into the Albion Unit again before briefly exiting it. At about 1.28 pm, as prisoners were ransacking and causing damage to the officers’ post in the Bellbridge Unit, you entered the breached unit and leant over the counter to the post before entering the officers’ post yourself, as other prisoners surged through it.
16 At about 1.42 pm, you approached the makeshift barrier which had been set up at the junction point of the fences to areas 1, 2 and 3. You placed a blanket or something similar into a fire which had been started there. As the fire grew you continued to feed it by throwing chairs onto it. At about 2.20 pm you were among other prisoners in the area 3 yard where you again threw objects onto a fire. At about 2.50 pm, you and other prisoners were in the officers’ post in the Albion Unit. You had at this stage removed the t-shirt from your face and were holding a pole. You struck the pole against something in the officers’ post before entering an internal area behind the officers’ post itself. A prisoner used a tractor to breach fences between areas 3 and 4.
17 At about 4.25 pm you were with a group of prisoners in area 4. You then moved back to area 3 with other prisoners. At about 4.30 pm, prisoners attacked the CMC again. Gates into the CMC were forced open by repeatedly pushing a prison buggy into them. A prison tug was also driven into the CMC. Prisoners then rushed into the CMC - you were not among the first wave of prisoners to do so, but entered the CMC at about 4.36 pm. The last section of CCTV footage in relation to you shows you among other prisoners inside the CMC. You were wearing a makeshift mask. Prison officers deployed tear gas into the CMC forcing you and other prisoners to retreat into the area 3 yard. The riot continued throughout the course of the day and past midnight.
18 On 4 November 2015 investigators made a formal request through the general manager of the Port Phillip Prison to interview you in relation to your involvement in the riot. You did not consent to be interviewed.
19 The prosecution also tendered 14 victim impact statements from prison staff who were affected by the riot. None of those staff members elected to have their statements read in open court. I have taken them all into account in the sentencing process. Unsurprisingly, the riot caused prison staff members in attendance extreme fear on the day and ongoing emotional and psychological harm impacting their quality of life. The experience of those in the front line must have been truly terrifying.
20 I now turn to matters personal to you. Your counsel tendered an outline of plea submissions dated 21 September 2021. He also provided reports of psychologists Carla Lechner, dated 10 September 2015 and Sandra Cokorilo, dated 20 September 2021. They provide a useful picture of your background history, of moderate levels of post-traumatic symptomology, chronic mild level depression and moderately severe anxiety.
21 You were born in Wonthaggi on 4 June 1986. You are now 35 years of age and you were 29 years of age at the time of the riot.
22 Your criminal record shows a history of offending going back to 2004 when you were 18 years of age. You have had prior court appearances for offences including violence, possession of a weapon, assaulting and resisting police, damage to property, acting in a disruptive manner in a police gaol and failing to answer bail.
23 You had an unsettled and difficult childhood. Your parents separated when you were a toddler. Initially, you remained in the care of your mother. You had a close relationship with your mother but not with your father. Both parents re‑partnered. Your mother struggled financially and you went to live with your maternal grandparents between ages four and seven. You were subjected to emotional and physical abuse by your grandfather. You then returned to live with your mother until you were aged 13, when you went to live with your father for about a year. You then returned to the home of your maternal grandparents until you were about 15. Thereafter you lived independently, mainly couch-surfing.
24 Your schooling was fractured by movement between many different schools. Academically you showed above average ability, but your behaviour was disruptive and your attendance record poor. You left school before completing Year 11.
25 You later commenced but did not complete many different courses. I note that you are currently involved in a TAFE mathematics and computing course whilst you are in custody. You have a record of intermittent employment since leaving high school at age 17, including roles in dairy farming, horticulture, painting, labouring and landscaping. The most stable period in your work history has been in the period of a little more than four years between your release from prison on 19 June 2016 and your arrest on warrant on 30 November 2020.
26 During much of that time you were consistently employed as a factory worker. It is to your credit that no further criminal conduct is alleged against you during that same period apart from what I was told during the course of the plea hearing: there was an offence of possessing an imitation firearm for which you received a fine of $300 in August of this year.
27 You have a history of substance abuse, but I do not regard it as particularly serious or of significance in my assessment of the appropriate sentences.
28 According to the report of Ms Cokorilo, you have never had a significant intimate relationship in your life, which you attributed to shyness and difficulties in building new interpersonal relationships. You were however involved in a relationship for approximately 12 months prior to you being remanded in custody. It was a volatile relationship due to what you described as your ex‑partner's abandonment issues and you were unable to negotiate an amicable separation before your arrest in November 2020. You have a 14‑year‑old son from a casual relationship, with whom you have been corresponding whilst you have been in custody on remand.
29 I now turn to sentencing considerations. Your counsel relied on the reports of the psychologists in a general sense but did not submit, I think correctly, that Verdins principles were enlivened. In both written and oral submissions your counsel urged me to take into account the difficult conditions of your incarceration and the continuing impact of COVID restrictions within the prison environment. I was also urged to consider linking a community correction order to a sentence of imprisonment. Given that this offending put you in breach of a previous community correction order made on 3 October 2014 and in the light of the overall circumstances, I am not persuaded that such a course is appropriate.
30 It was submitted by your counsel that you felt pressured by the prospect of reprisals from other prisoners to participate in the riot and that you returned to your cell shortly after your participation was captured on CCTV. However, in the course of oral argument your counsel conceded that you were engaged in the riot from about midday until after 4.30 pm. I therefore reject the submission that your sustained participation was motivated or limited in the way suggested. I conclude beyond reasonable doubt that your conduct overall is inconsistent with any notion of duress from other prisoners, and that you were a willing and active participant.
31 You have pleaded guilty and are entitled to a substantial and perceptible discount in sentence, particularly in light of the strain on the court system and the more onerous conditions of incarceration occasioned by the COVID pandemic. Your pleas of guilty are also consistent with your expressed remorse for your participation in the riot. The delay in this matter proceeding to sentence was largely caused by your failure to answer bail on 20 March 2017. However, during your time at liberty you stayed out of trouble and were employed. You have therefore taken the opportunity of demonstrating that you have reasonable prospects of rehabilitation. You have expressed positive intent to lead a productive and law-abiding life when free to do so. And I believe that you have the capacity to achieve that ambition if you maintain your determination to do so. I note that prior to the riot, you had been in custody on remand since 18 June 2015, quite a short period of time.
32 On 18 September 2015, you were sentenced to imprisonment for 12 months. You served the full sentence being released on 19 June 2016. If you had been sentenced for the offence of riot during the currency of that sentence, it is likely that you would have been subject to an order for some degree of concurrency of sentences. You have not had the benefit of such an order, and I take that into account in your favour in determining the appropriate overall sentence today.
33 The seriousness of the offence of riot was aptly described by His Honour Chief Judge Kidd in his reasons for sentence in the case of Luca to which I referred earlier. In those reasons he said as follows[2]:
[2]Ibid [17]-[18]
‘I consider this to be a very serious example of this type of offence. It is hard to make a comparison of riot offences given there are so few. But the sheer scale of this prison riot makes this riot a very troubling disturbance of a very high order. That is so whether it is measured by the number of participants involved in the rioting group (200 to 300 prisoners), its duration (many hours over the course of a day), the fact the rioters acted against law enforcement officers or prison officers in the execution of their duties, the breadth of personnel required to restore order to the prison and secure all the prisoners (namely prison, police and fire brigade personnel), the potential danger to which these officers were exposed, the level of alarm which this riot generated, the sense of complete anarchy depicted in the CCTV footage, or the breathtaking scale of damage and loss actually caused.
‘While minor physical injuries and psychological harm was caused, thankfully this was not a riot which resulted in serious physical harm or injury. I take this into account but, self-evidently, a prison riot of this scale carried with it a very high degree of risk to the personal safety and security of the prison officers and other public servants involved. It caused significant fear.’
34 Your participation in the offending was itself very serious. You were not an instigator or leader of the riotous conduct, but your participation in it was substantial, significant and sustained over a period of some four and a half hours. There is however, no evidence that you personally engaged in direct physical assault on prison staff. It is submitted by the prosecution that the objective gravity of your offending in the riot was more serious than that of the accused in the matter of Luca who was aged 21 at the time of the riot, compared with your 29 years, and was less serious than that of the prisoner Barnes who was sentenced in the County Court in 2017[3]. Barnes was sentenced to imprisonment for 3 years for the offence of riot; Luca was sentenced to imprisonment for 2 years and 5 months. On balance, I agree with those submissions.
[3]DPP v Barnes [2017] VCC 447
35 In considering my approach to the question of parity of sentencing, I am greatly assisted by the decision of the Court of Appeal in Kumas v The Queen [2017] VSCA 287. Of course, in common with other judicial officers faced with the same task, I am disadvantaged by the fact that it is practically impossible for me to explore all the relevant facts and circumstances of each of the comparable cases. But I have, I think, gleaned a sense of how your offending compares with that of your co-offenders who have been sentenced in the intervening period. I note that none of the sentencing orders made in relation to other participants in the riot was made during the COVID pandemic; they had all been sentenced prior to the pandemic commencing, I think the last of them in 2018.
36 It is necessary that I impose just punishment and that in imposing sentence I adequately denounce your serious offending conduct. Most importantly, the sentence must also be directed at general deterrence, that is, deterrence of others from conduct of this kind. Having regard to your prior criminal history, I must also treat as important the need to deter you from committing similar or other offences of violence and the need to protect the community. Yet I must also give full value to your pleas of guilty in these unprecedented COVID times, as well as giving proper weight to the fact that you missed having any part of the sentence I am about to impose served concurrently with the terms of imprisonment commencing in September 2015.
37 Balancing these competing considerations, I sentence you as follows.
38 For the offence of riot, you are convicted and sentenced to 23 months’ imprisonment. That is the base sentence.
39 For the related summary offence of failing to answer your bail, you are convicted and sentenced to 4 months’ imprisonment.
40 I order that one month of the sentence imposed on the related summary offence be served cumulatively upon the sentence of 23 months imposed on the sentence of riot.
41 The total effective sentence is therefore 2 years' imprisonment.
42 I further order that you serve a period of 16 months' imprisonment before you are eligible for parole.
43 I declare 310 days of pre-sentence detention, not including today, as time to be reckoned as having been served on the sentence I have imposed, and I direct that those facts be noted in the records of the court.
44 Pursuant to s6AAA of the Sentencing Act I declare that, but for your pleas of guilty, I would have imposed a total effective sentence of 3 years and 6 months' imprisonment with a non-parole period of 2 years and 4 months.
45 Counsel, are there any other matters that I need to deal with?
46 MS VAN DEN AKKER: No, Your Honour.
47 MR VALOS: No, Your Honour.
48 HIS HONOUR: All right, thank you. Adjourn the court please.
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