Director of Public Prosecutions v Thomas

[2017] VCC 1134

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00557

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE THOMAS

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 August 2017
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2017] VCC 1134

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr G. Hayward
For the Accused	Ms S. Lacy

HIS HONOUR:

1Shane Jeffery Thomas, you have pleaded guilty to one charge of riot.  You have admitted your criminal history which consists of some twenty-one pages, detailing offending between 1995 and 2015.

2It is an extensive history of criminal behaviour and supports the proposition put by your counsel that you are institutionalised.  Sentencing outcomes have included gaol, community corrections order, suspended sentence, intensive correction order.  As I remarked during the plea, when your counsel submitted that I could consider a community corrections order disposition as a sentencing option, I am not optimistic as to any way in which I could assist your rehabilitation. 

3You have served 53 days in relation to this offending.  You were released on bail, but declined to attend at a court hearing and thus breached your bail.  You then had to be arrested.  Fourteen victim impact statements were tendered.  They were not read.  I have taken their contents into account.  They reflect the concern the Corrections staff had for their personal safety during this riot.

4The facts of the matter, apart from the disputation that I will mention shortly, in general disputed by your counsel, I will briefly refer to them, but any reader of these reasons can refer to Exhibit 1, which is the prosecution opening, to place the sentence in its full factual context.

5Briefly stated, after a number of protests at the Melbourne Remand Centre relating to the ban on the provision of tobacco products to visitors, on 30 June 2015, approximately 200 to 300 prisoners at the Melbourne Remand Centre were involved in the largest riot in Victoria's correctional history.  It took fifteen 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, to large parts of the Melbourne Remand Centre no longer being operable.

6Your role in the matter is set out in Part B of the prosecution opening and in the prosecution submissions on sentence. In paragraph 6, the prosecutor set out the offending conduct that is alleged against you.  It included being part of the crowd of prisoners who gathered together after fences were breached, being amongst the front of prisoners before the CMC was breached.  Making a "Come over here" gesture to other prisoners when the CMC was breached.  In relation to that, I do not accept that I can make a finding that is in fact what you were doing.  I certainly saw a gesture of some sort when I saw the CCTV footage.  As to what it was about or who it was directed to would be speculative on my part and I am not prepared to act on speculation.

7You were among the first group of prisoners to enter the CMC after it was breached.  You attempted to disguise yourself.  You picked up items which had been taken from the canteen.  You entered the canteen.  You entered the officers post of the Ballan Unit.  You struck windows in the Ballan Unit with a pole or torch.  You entered into the breached Attwood Unit.  You rummaged through the officers post in the Attwood Unit.  You entered the breached Burnside Unit and rummaged through the officers post.

8You entered the breached the Bellbridge Unit and attempted to use a phone there.  You were among the first prisoners to enter the Billingham Unit, after it was breached.  You attempted to open the main entrance door to the Billingham Unit.  You were armed with a pole or a torch entering the officers post to the Billingham Unit.  You sprayed a CCTV camera in the Billingham Unit.  You entered the officers post in the Albian Unit and took a file from a cabinet.

9In her written submissions to me, your counsel took objection to a number of the allegations made by the prosecutor.  I have dealt with the issue of the gesture.  During the course of the plea, I watched a number of CCTV footages of the riot. 

10Your counsel put in her submissions that it was not until after you covered your face with your T-shirt that you formed the requisite common purpose to participate in the riot.  I do not accept that submission.  It is clear to me that after the first gate was breached, you willingly followed the people who breached it into the next part of the gaol, which you were not authorised to do so.

11You then, on the footage, picked up what seemed to me to be some sort of mat from the ground and carried it off somewhere and then returned.  At that stage, prisoners were doing things such throwing chairs around, et cetera.  You went over and knocked a couple of times on a window.

12I am satisfied beyond reasonable doubt that at the stage you followed the other offenders into the unauthorised part of the gaol, you were taking part in the riot.  Your actions at that time convinced me that that was your intention.

13As to your banging on the window, I have no idea what that was about.  Your counsel submits that it was you trying to get attention to hand yourself in.  That may or may not have been the case, but there were no prison guards in that area.  Earlier in the day, you had missed the lockdown at 11.45 and could not get back into your unit.  Your counsel submitted that you were knocking on that window to attract prison guards.  It seems to me that it is neither here nor there.  It was certainly far from the most heinous thing that was done that afternoon and to me, looked an innocuous event.

14You make an allegation that you were assaulted by a prisoner with a baton, after knocking on the guard's widow.  There is no evidence of that.  I cannot make a finding in respect of it and it does not assist me one way or the other in my consideration of your sentencing here.

15Your counsel said that you covered your face because teargas had been deployed at that stage.  The evidence from the prosecution is that it was not until about an hour and a half or so later that teargas was used and that you covered your face to disguise yourself.  I am satisfied on the requisite standard that that is what you were doing.  Your counsel puts that your primary purpose during the riot was survival.  I am unable to make a finding in the lack of any evidence about what your purpose was at the time, apart from what I observed in the CCTV footage and what you have pleaded guilty to and the facts that you do agree with as to your behaviour.

16In following the other offenders into the unauthorised part of the gaol, after that part was breached, at that stage, you clearly made a decision to follow.  If indeed your primary purpose was survival, perhaps you should have turned around and walked off to another part of the prison.

17There is an allegation that you were the person who struck a glass panel of a door at the Burnside Unit.  I have viewed the footage of that and the footage is very hard to see and I am not satisfied beyond reasonable doubt, that if in fact that is what some person did, that that person was you.  There are two issues about you telling lies, one to your mother and one to the police in the interview.  Whether you did or not really is no relevance to my sentencing considerations here. 

18The prosecutor submitted that your actions during the riot were in the low range of involvement when compared to co-offenders and I accept that categorisation.  In mitigation, your counsel put that you have pleaded guilty at a relatively early stage and I accept that.  You will be given the appropriate discount.  A plea of guilty is an acceptance of responsibility by you for your behaviour and has saved the court the time and expense of a jury trial.

19She put that you are an institutionalised person and as I said, I accept that.  I take the view there is very little at this stage, in your life, that I can do much about that, considering your offending.  She pointed to your physical and mental health issues.  She urged me to consider the issue of parity and the issue of delay.  I have taken all those factors into account.  You are now 41 years of age. 

20Two medical reports were tendered.  One from Dr Aaron Cunningham, a forensic psychologist.  In that, your problems were set out by Mr Cunningham.  He said that you present with post-traumatic stress disorder, obsessive compulsive disorder and substance abuse disorder.  He had seen you previously and I have had a look at some of the reports he previously made in other years.

21He said your mental state had deteriorated significantly since the time of his prior assessments.  He said your traumas in the community and in gaol have perpetuated and aggravated your post-traumatic stress disorder symptoms.  He said:

"In my opinion, exposure to further trauma in a prison environment would aggravate that disorder".

22He suggested that he could refer you to an organisation called NEME who might be of assistance to you. 

23Your counsel relied on what is called point 5 of Verdins in relation to how you would cope in gaol with your mental health issues, as set out in Dr Cunningham's report. I agree with his opinion that your exposure to further trauma in a prison environment would aggravate the disorder you have and I have allowed for that in my sentencing remarks.  The prosecutor also accepted that.

24A neuropsychology report from Susan Carey was obtained.  It is a comprehensive report.  It set out your personal history.  Your parents separated when you were seven.  You were the eldest of four sons to your mother.  You shared a father with your two eldest brothers.  Your mother had a troubled relationship with partners and children and yourself.  You were placed in care.  You attended various schools and left school during Year 9 with your poor literacy skills.

25You have very little reading and writing ability.  You have had a very limited occupational history and every time you are released from gaol, you become homeless.  In her report, the neuropsychologist sets out your drug habits, beginning with the use of cannabis from the age of 15, then the use of heroin from the age of 19.  You had four heroin overdoses in 2008.  You have engaged in self-harm and suicide attempts multiple times in the community and in prison.  Your other medical history was set out at p.4 of the report.  It was concluded you had sustained a substance related cognitive impairment that has compromised your already vulnerable brain. 

26You are in detention in a behavioural management unit where you are allowed out of your cell for two hours a day.  You indicated to the neuropsychologist that this arrangement was to your liking because you preferred being on your own because you felt vulnerable in the main detention setting.

27A comprehensive set of tests were conducted upon you as to your intelligence levels and it was concluded that your general intellectual functioning was in the borderline to low average level, as set out in p.12 of the report.  Ms Carey said that you appear to have good insight into your need for support and to acquire and maintain suitable accommodation.  She said it was imperative that you abstain from illicit drug use.  She had concerns for your mental health if you were to resume any drug use at all.

28I have taken all those factors into account in sentencing you, as set out in both of those reports.  You certainly are not being sentenced as a planner or organiser of the riot, but as a low level participant.  I have now dealt with three of these matters and parity is an important sentencing consideration here.  I have been referred to various sentences imposed on co-offenders and the case of Luca, a case decided by the Chief Judge of this court on 24 October 2016.

29In his sentencing reasons, the Chief Judge comprehensively set out the relevant principles in relation to sentencing for riot.  See paragraph 15 of the reasons.  I accept His Honour's propositions.  But in particular, the proposition:

"In assessing the culpability of an individual participant, it is wrong to take the acts of the individual participant in isolation. That is because the acts of the individual were not committed in isolation and this is the very fact that constitutes the gravity of the offence.  A person who participates in a riot bears some responsibility for the collective damage and harm caused. The sentencing Judge should nevertheless take into account the extent to which the offender was to blame for the offence, and the part which he had played in the commission of the offence".

30The 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 follow in joining in a 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.  His Honour said, and I repeat:

"[T]his 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.".

31Looking at the issue of parity, I have not delved into a minute examination by way of comparison of your behaviour with those of other rioters.  The cases I have looked at are useful comparisons to assist me here in my sentencing process. 

32In mitigation, your counsel relied on a number of factors as I have already outlined.  The basic purposes for which a court may impose a sentence or punishment are general deterrence, that is to try and send a message to others.  Specific deterrence, that plays a significant role here because of your criminal history.  General rehabilitation, denunciation and protection of the community.

33In 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 the effect it has had upon the prison officers and other staff involved in this riot.  Because of the weight that I have given to general deterrence, it is my view that a combined sentence and a community corrections order, or a community corrections order standing alone is out of the range of the sentencing options available to me, because of the serious nature of the offending.

34I find little in your background or the material presented to me that suggests that you have substantial prospects of rehabilitation.  I take no joy in coming to that conclusion.  Your criminal history and the life that you led is certainly a very sad one.  However, others are effected by your criminal actions and society has to be protected from you.

35It is unfortunate the criminal justice system has been unable to solve your multiple problems, but as I said, I have to take into account general and specific deterrence and the protection of society and that compels me to impose the following sentence.

36On a charge of riot, I convict you and sentence you to a term of imprisonment of fourteen months.  I declare that you must serve a period of six months before becoming eligible for parole.  I declare that the 53 days that you have already served to be reckoned to be part of the term of imprisonment I have just imposed.

37It is clear under s.6AAA of the Sentencing Act, tt if you had proceeded to trial by jury and you were convicted, you would have received a sentence in the order of three years, a non-parole period of two.  Are there any other orders I need to make?

38MR RAIMONDO:  No, Your Honour.

39HIS HONOUR:  Very well, thank you.  You may take the prisoner out.  Thank you.

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