Director of Public Prosecutions v Towns
[2017] VCC 1148
•18 August 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR -17-00333
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHILLIP TOWNS |
---
| JUDGE: | HIS HONOUR JUDGE LYON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 18 August 2017 |
| CASE MAY BE CITED AS: | DPP v Towns |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1148 |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | ||
| For the Accused |
HIS HONOUR:
Phillip Towns you have pleaded guilty to one charge of riot. The maximum penalty for this offence is ten years' imprisonment.
You have admitted your prior convictions and I will come back to them in due course.
The 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 indicated 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 (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 Central Movement Control 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 $12.1 million worth of costs relating to the riot, of which approximately $6.89 million related to the 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].
The net effect and scale of the riot was vast. The riot itself was marked by prisoners:
· tearing down and breaching security fences;
· disguising their faces to avoid identification and detection;
· using metal bars and other items 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 prison officers.
For their part, prison officers:
· Were forced, along with public servants and contractors to flee from various parts of the prison;
· Repelled 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.
I have already said something already 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.
Your 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 involvement lasted from just before midday until just after 3 PM;
· You were one of the prisoners who commenced kicking the fences between areas 1 and 2;
· You were one of the prisoners who entered through the damaged fence area from area 3 into area 2;
· You attempted to disguise yourself for a period of time as you walked towards the CMC;
· You were one of the first prisoners to enter the CMC;
· You damaged the vent on the canteen door with a stick before you injured yourself;
· You entered the canteen and took items including a pair of sunglasses;
· You watched on as other prisoners attempted the second breach of the CMC;
· You changed your shirt and gloves. This had the significance explained by the prosecution;
· You entered the Atwood unit;
· You rummaged around the Burnside unit officers post; and
· You removed a cell door in the Billingham unit and liberated a prisoner. The prisoner was your cousin Jamie Robinson.
In telephone calls to your partner and to your mother you admitted removing the cell door to Jamie Robinson’s cell. There is a lot of bravado in your calls. For example, you stated that it was necessary to free Mr Robinson to save him from the effects of smoke and fire. There was no fire in the unit at that time. Although you told your mother that the protests got out of hand, you did not express any particular remorse or regret in the course of those calls.
On 30 November 2015 you were interviewed but you made mostly “no comment” responses or denied involvement.
You were remanded in custody on 8 June 2015. On 8 December, you were released from prison after serving the sentence for the matters on which you were remanded, the riot of course having occurred 30 June 2015.
You were charged on summons with this offending on 23 December 2015. After initially failing to appear, you spent four days on remand but then were bailed on the riot charge on 9 May 2016. You were arrested and remanded in relation to unrelated matters on 28 November 2016 and you have remained in custody since that date. You indicated your intention to plead guilty to this charge on 27 March 2017. You have now spent, as was agreed with your counsel, 176 days of pre-sentence detention for this charge.
I have been provided with 14 victim impact statements (Exhibit B) from prison officers at the MRC. It is not alleged that any of the injuries or difficulties they have suffered are directly attributable to your conduct. Nevertheless, I do note that on more than one occasion, prisoners directly confronted prison officers. Of those who provided victim impact statements, many 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. So it is apparent that overall, the actions of you all have taken a toll on the staff who were exposed to your criminal acts.
I now turn to your personal circumstances.
You are 40 years of age and you were born in May 1977.
You were brought up in the Wangaratta area. You have two younger siblings. Your parents are still together and your mother was present in court.
You had a reasonable upbringing but in the words of your counsel, you rebelled in your teen years. You were only educated to Year 8 and you have poor literacy skills. I am told that you have worked as a painter and truck driver, but prior to your remand on this occasion, you were receiving a disability pension.
You have three children from a previous relationship and your current partner has three children of her own. Like your mother, she remains very supportive of you.
Your life, though, has been blighted by your constant battles from an early age with alcohol and drug abuse. You have been using methylamphetamines through much of your adult life. Your counsel told me that your offending for the most part relates to your drug use. Unfortunately, whilst you have been provided with court ordered opportunities to rehabilitate, you have not been able to overcome your long-term addiction to this point.
Your prior criminal history goes back to 1994. Significantly, there is a gap between 1994 – 2005, during which time I am told that you were able to achieve stability in your life. After that, many of your prior convictions relate directly or indirectly to drug use. There are a couple of notable exceptions to that. I was provided with your up-to-date criminal history, including a number of subsequent convictions. I do not have regard to the subsequent convictions in determining the appropriate sentence to impose on you.
Gravity of offending and Your role in it
The 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.
The 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 of you, and where over 100 have now 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.
Great 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 participate in the same offending.
The 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].
The actions of you all were directly aimed at law enforcement; that is, both in respect of the laws that were made regarding your detainment and then against the 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.
The 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.
It 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.
The Crown submits that your role was similar to that of the accused in Luca. In its submissions before me, the Crown set out the 18 points of similarity and dissimilarity between the two of you. Essentially, you were both involved for about the same amount of time, you both caused some property damage during the riot, and neither of you were involved in the second breach of the CMC. nor did you confront prison officers. The main points of difference between the two of you were that Luca wore a breathing mask apparatus and he drove vehicles. You did neither of those things. You, on the other hand, used an allen key to open Jaime Robinson's cell. Luca did not liberate any prisoners.
On your behalf, Ms Lynch made detailed submissions analysing the nature and extent of your role in the riot. In particular, Ms Lynch emphasised that you should not be held responsible for any of the conduct that took place after you voluntarily withdrew your participation in the riot. After a careful consideration of those submissions, and a comparison with those submissions made by the Crown, I accept that your role in the offending was slightly less than that of Luca. The sentence that I impose upon you must reflect the fact that I have made that finding as to your moral culpability.
Parity
In 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 other offenders and I must take into account, so far as they exist, current sentencing principles. Overall, I am satisfied that the objective seriousness of your offending lies a little below that of Luca and the sentence I will impose will reflect this.
Of course, however, you are significantly older than Mr Luca and furthermore you have significantly more prior convictions than Luca. But of course, there can never be a perfectly equal comparison or matching of 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.
In her written submissions, Ms Lynch took issue with the Crown’s “restricted approach”, as she called it, to comparing your role only to that of Luca and not that of others who have come up for sentence. I note, however, that Ms Lynch did not refer me to other sentences imposed in this court. After considering the detailed submissions as to the objective roles of both you and Mr Luca in the offending, I consider that Luca sentence does provide something of a generally appropriate standard against which your conduct can be measured. However as I have said already, there can be no perfect match between your subjective circumstances.
Plea of Guilty - Utilitarian Effect
As to your plea of guilty, I note that it was entered at the earliest opportunity. 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. The sentence imposed will therefore take into account your early plea of guilty and the fact that it facilitates the course of justice.
Lockdown / hardship
As to lockdown, the Crown tendered the affidavit of Jennifer Hosking. I note also that after the riots you were initially placed in 23 hour lockdown at the MRC. By 28 July 2015 you were receiving two hours a day out of the cell. I note that by 20 September 2015 you were reclassified to a minimum security prison. From 24 September 2015 you were working as a laundry billet until your release on 8 December 2015 on a CCO.
The 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 will broadly take into account the added burden that you faced during this period.
Prospects for rehabilitation
Ms Lynch submitted that your prospects for rehabilitation remain largely contingent on you remaining stable in the community once you are released from prison. Ms Lynch submitted that the sentence structure needs to provide for rehabilitation as a component by way of a parole period.
It is apparent that you still have the support of your mother and your partner. Moreover, it is also apparent to you have made some efforts towards rehabilitation whilst in prison. The affidavit of Hosking shows that your behaviour in prison has (with only one questionable exception, and I note that you do not accept what she says) been of a high standard. You have worked as a billet and you have completed the six weeks “change on the inside” program. You have been prescribed medication to deal with anxiety and depression.
I consider that you do have some prospects for your rehabilitation, but those prospects remain guarded. The Crown points out that you have breached court orders both prior to and after the rioting conduct. I consider that you must address your long-standing drug addiction problems if you are going to have reasonable prospects for rehabilitation.
I also consider that you will need assistance on your release from custody through the structure of parole.
I consider that the offending in this instance and your role in it must be met by a term of imprisonment but I have decided that the structure of parole would provide a firm foundation for your reintegration back into the community when your sentence finishes.
So Mr Towns, it will be necessary for you to work very hard whilst you are in prison to continue to cooperate with the prison authorities to ensure that the parole period is granted. After that, you have got to resolve to remain drug-free and start making changes to your lifestyle. If you do that and if you are granted parole, then the structure of the parole system and the allocation of a parole officer will give you the opportunity of reintegration back into the system prison with the assistance from the authorities.
Totality
As to totality, I note that in the 25 months since your offending you have spent a lot of time back in custody. And of that time, you are only credited with 176 days of pre-sentence detention; just short of six months. In determining the appropriate sentence to impose on you, I have taken into account the need to apply the principle of totality to achieve a sentence which recognises the overall period you have spent in custody since the offending.
Sentence
On the charge of riot, you are convicted and sentenced to 21 months imprisonment. I order that you serve a non-parole period of 11 months. I then declare that you have served 176 pre-sentence detention reckoned as already served excluding today.
The 6AAA declaration is that but for your plea of guilty, I would have imposed a sentence of three years and nine months with two years and six months to serve.
- - -
0
2
0