Director of Public Prosecutions v Triantopoulos
[2018] VCC 743
•23 May 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-00605
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CON TRIANTOPOULOS |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 April 2018 and 23 May 2018 |
| DATE OF SENTENCE: | 23 May 2018 |
| CASE MAY BE CITED AS: | DPP v Triantopoulos |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 743 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr Gilligan | OPP |
| For the Accused | Ms Trumble | Leanne Warren and Associates |
HIS HONOUR:
1 Con Triantopoulos, you have pleaded guilty to one charge of Riot. The maximum penalty for this offence is ten years’ imprisonment.
2 On 24 October 2016, the Chief Judge of this court sentenced a co-offender, Jonathon Luca, for the offence of Riot. I adopt the remarks His Honour made regarding the overview of the events that occurred on 30 June 2015:
On 30 June 2015, 200-300 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 held by prisoners at the MRC in the days leading up to the riot.
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 (CMC) was breached for a second time. It had essentially ceased by 11pm.
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 repairs and maintenance of the MRC.
3 I now turn to your specific role in the riot:
· Your actions span the period 12.07 pm to 12.49 pm.
· At 12.07 pm you were seen in the Area 3 yard. You moved towards the CMC with a group of prisoners. You watched as some of those prisoners attacked the gates of the CMC. When the gates were forced open you clapped your hands and moved towards the entrance. You made your way inside the building and walked to the gate leading to the canteen. You joined the group of prisoners outside the canteen. The canteen was breached and prisoners entered, causing damage and stealing property.
· At 12.49 pm, a group of prisoners forced their way into the Ballan Unit. They caused damage to the front entrance and the Officers Post. When the Unit was breached, you were seen to enter and wave your hands in the air. You had wrapped a long sleeve shirt around your face in an attempt to disguise yourself.
· You were later seen exiting the Unit and walking towards area 2.
· You were not involved in the riot after this time.
4 Fourteen victim impact statements from prison officers were tendered at the plea hearing. The riot had a major impact on their lives. Several have suffered from sleeplessness and flashbacks. Work relationships and family relationships have been adversely affected. Many no longer feel safe in their workplace. In short, the psychological impact on the lives of these officers has been considerable.
5 In the case of Luca, the Chief Judge detailed the legal principles that attach to the offence of riot and I again adopt his comments:
·Riot involves an assembly of people intending to assist each other, by force if necessary, in pursuit of a common purpose;
·The offence of riot is a very serious offence. It derives its gravity from the simple fact that the persons concerned were acting in numbers and using those numbers to achieve their purpose. It involves public alarm because it is currently or potentially dangerous. It usually carries with it an inherent danger of injury to persons or property or both;
·The level of violence used (in relation to persons or property) and the scale of the violence are factors relevant to sentence;
·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;
·Great weight should be given to the consideration of general deterrence for the offence of riot. The sentences must make it less likely in the future that others will follow in joining in a riot;
·The offence of riot is more serious where the rioters act against law enforcement officers in the execution of their duties;
·The fact that the riot occurred in a prison setting confirms the importance of general deterrence. Even though the authorities which support the proposition that deterrence assumes particular importance where offending takes place in a prison setting are generally concerned with prisoner upon prisoner assaults, the rationale behind this principle must apply with similar force to a prison riot. The courts cannot permit the law of the jungle to take hold in prisons.
6 It is not disputed that this riot was a serious example of such an offence. The riot involved a large number of prisoners, it persisted over many hours, it caused millions of dollars' worth of damage, it was a vigorous attack on the proper operation of the prison, law enforcement officers were confronted and had items thrown at them and the riot generated a high level of fear and alarm.
7 I now move to an analysis of your specific role in the offending. I accept that you were not one of those involved in the planning or organizing of the riot. Your contribution was confined to the acts and to the period of time that I have already identified.
8 Whilst you did not play the role of a ringleader or organiser, you did participate in the riot for just over 40 minutes. You were with the group of prisoners who walked to the CMC and you watched as some of that group began pushing on the gates. Once the gates were breached you clapped your hands and entered the CMC. You moved to the canteen area, which was also breached. Later, you entered the Ballan Unit at a time when damage was caused. Your involvement ceased after this time. It is not alleged that you personally caused any damage, stole any property, brandished any weapon, lit any fires or did any other physical acts in furtherance of the riot. I am satisfied that you were a follower of others. I accept that you were involved in the riot for a relatively short period of time and that your involvement was modest in comparison with many other prisoners. For these reasons, your level of culpability is lower than many of your co-offenders.
9 I now move to your personal circumstances.
10 You are 36 years old. You are the second eldest of three boys. I was told that your older brother bullied you and as a consequence, you often ran away from home. You started associating with older boys who were a bad influence upon you. You were chroming at the age of 14 and smoking cannabis by the age of 15. You disengaged from school during Year 10. You were 15 when you first appeared in the Children’s Court for offences of burglary, theft, possess cannabis and use cannabis. An appearance in the Children's Court at that age is usually indicative of significant family problems. At the age of 17 you were introduced to heroin. Within 12 months you were injecting it. Your addiction to heroin has had a profoundly disruptive and adverse impact on your life.
11 Your circumstances were made more difficult by your intellectual disability. A neuropsychologist, Ms Jane Loftus, recently assessed you. She reports that your full scale IQ is 72 and within the borderline range. The score is below average and "indicative of significant intellectual impairment." Ms Loftus also expresses the opinion that you present with a mild to moderate level of brain injury probably related to a variety of matters, including your "drug use, drug overdoses, motor vehicle accidents and assaults coupled with a failure to achieve at school against a background of premorbid intellectual function in the low average range." In addition, Ms Loftus noted that you presented with symptoms consistent with mild levels of depression, moderate levels of anxiety and stress.
12
In concluding her report Ms Loftus says, "Mr Triantopoulos presents with intellectual impairment and psychiatric issues marked by a long-standing history of behavioural deregulation and chronic drug use. It is likely that pre-existing intellectual deficits and psychiatric issues have placed
Mr Triantopoulos at risk of overreacting within the larger group of prisoners, marked by reaching ill-considered and impulsive decisions and contributed to him taking part in the prison riot."
13 Given this opinion, I find that your moral culpability is somewhat reduced and that there should be some moderation of sentence for that reason.
14 Ms Loftus also expresses the opinion that your intellectual impairment and psychological state make it likely that you will find incarceration more onerous than it would be for a person without your conditions. I accept this finding and it also provides a further ground for moderating your sentence.
15 You have a long criminal history. It commences in 1997 in the Children’s Court. It predominantly relates to dishonesty and drug offending. Apart from some robbery matters in 2001 and 2002, there are no other offences of violence against the person. You have received every sort of court order ranging from community-based orders, youth detention, suspended sentences and gaol terms. None have stopped the offending. This explains why I am guarded about your prospects of rehabilitation.
16 Obviously, your prospects would be considerably enhanced if you were able to stop abusing drugs. Your counsel submitted that you now have a strong incentive to stop using drugs and stop offending. In late 2015 or early 2016, your father was diagnosed with a debilitating and progressive wasting disease known as Progressive Supranuclear Palsy (PSP). His condition has deteriorated over time. His ability to eat, and walk has been compromised. He is depressed and he is in pain. Pain management is a significant issue. Although his initial diagnosis did not stop you from committing offences in the first half of 2016, his deterioration over time has made you appreciate and understand the seriousness of the condition and its full impact upon him and upon your family. Your expressed desire to assist and support your father does provide a strong incentive for you to stop abusing drugs and stop offending.
17 You entered a late plea of guilty. Even so, you are entitled to a discount for that plea. It is an acceptance of responsibility. In addition, no witnesses have been required to give evidence and your plea has saved the community the expense associated with a criminal trial. You will be given credit for all these matters.
18 After the riot you were held for some time in lockdown. This means that you experienced hardship that was not experienced by all prisoners. However, as the Chief Judge said in the case of Luca – "the benefit here should be reduced by the fact that some of this hardship was, at least, initially self-inflicted, in that it was immediately caused by the riot in which you participated. The credit or benefit you get for this is a question of degree."
19
I acknowledge the relevance of totality in this case. A little history is required to best understand this issue. On 10 May 2014, you were remanded in custody for offences that were eventually determined in the Magistrates’ Court on
17 December 2015. On 23 February 2015, you were bailed on these charges. You reoffended and you were again remanded in custody on 4 May 2015.
20 You were on remand when the riot occurred on 30 June 2015.
21 A consolidated plea was heard in the Magistrates’ Court on 17 December 2015 and you received a sentence of imprisonment of one year and eight months (with 517 days pre-sentence detention) together with a 12 month Community Corrections Order (CCO) with rehabilitation conditions.
22 On 21 December 2015, you were charged on summons with the offence of riot.
23 The sentence from 17 December 2015 lapsed on 17 March 2016 and you were released on your CCO. You reoffended very quickly and returned to prison on remand on 25 March 2016. These new offences were dealt with in the Magistrates’ Court on 27 May 2016. You were sentenced to two months jail and, because of pre-sentence detention, released that day. You reoffended and returned to prison on 22 June 2016. You have been in custody ever since.
24 For completeness, I note that on 9 September 2016, you received a sentence of four months (with 79 days PSD) in the Magistrates’ Court. That sentence lapsed on 21 October 2016 and you remained on remand pending the hearing of further matters in the Magistrates’ Court on 27 June 2017.
25 On 24 March 2017, you were committed for trial on the charge of riot and you made no application for bail.
26 On 27 June 2017, you were sentenced in the Magistrates' Court to a period of 15 months' imprisonment with a minimum term of eight months. A declaration was made of 249 days pre-sentence detention. You were not released on parole and have, therefore, served the full 15 months of that sentence. Finally, on 12 July 2017, you were dealt with in the Magistrates’ Court for further offences and contravening the CCO that was made on 17 December 2015. You were sentenced to an aggregate sentence of three months' imprisonment (to be served concurrently with the sentence from June 2017) and you also received a five month suspended sentence.
27 In relation to totality, the following matters are significant. First, the late entry of a plea in this matter has meant that you have lost the opportunity for some concurrency with the various sentences imposed in the Magistrates’ Court. Second, you were not released on parole in relation to the sentence imposed on 27 June 2017. It is reasonable to assume that your remand for the riot was a factor in that regard. Finally, you have been in custody for much of the time since 30 June 2015. I take all these matters into account, in a general way, when fixing sentence.
28 Finally, there is the issue of parity. In dealing with this issue I must make due allowance for the respective criminality of each offender. I have already said that your level of culpability is low when compared with most of your co-offenders. It is true that the personal circumstances of some of your co-offenders, at least, were different to yours. Luca, for example, was a young offender with no prior convictions. However, the application of the Verdins principles and the application of the totality principle are both highly relevant in considering your circumstances.
29 Mr Triantopoulos, there is force in your counsel's submission that a combination order would be appropriate in this case. Your level of culpability was low in comparison to other offenders and there are a number of important matters in mitigation. In addition, you now seem to appreciate the seriousness of your father's medical condition; he clearly is very ill. This would seem to provide a powerful incentive for you to comply with a community corrections order upon your release from prison.
30 You are sentenced to six months' imprisonment, together with an 18 month community corrections order. I declare 154 days pre-sentence detention. The community corrections order has the following conditions: you are to be under supervision for the period of the order, you are to attend for assessment and treatment (including testing) for drug abuse, you are to attend for mental health assessment and treatment, you are to participate in offending behaviour programs and you are to attend before me for a judicial monitoring hearing at 9.30 am on 24 July 2018. You are to report to Carlton Community Correctional Services within two working days of your release from prison.
31 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to 18 months' imprisonment with a minimum term of 12 months. Do you understand what has happened?
32 OFFENDER: I do, Your Honour, yes.
33 HIS HONOUR: It is a six month sentence. You have already done 154 days so in around 26 days or so you will be released. You will then be on a community corrections order for 18 months. The first thing you will have to do upon release is go to the Carlton Community Corrections Centre; you understand that?
34 OFFENDER: Yes.
35 HIS HONOUR: The community corrections order is designed to try and assist your rehabilitation in the community and, to that end, it has specific conditions that are particularly addressed to supporting your drug addiction and your current mental health conditions; do you understand that?
36 OFFENDER: I do.
37 HIS HONOUR: Corrections administer the court's order. If you do not comply with the order, you will be brought back to court, brought back before me and I will deal with you for breaching the order. Your past experience on these orders has not been good so you really have to work hard to make sure that you comply with this order. Because if you are unable to comply with the order, then almost certainly you will go back to prison.
38 Your father is very ill. He needs your support. The last thing that he needs is for you to go back to prison. But if you make the choice, upon your release, not to do what is required under the order or to commit further offences, then the price you will pay is that you will go back to prison and your father's condition will not be able to assist you. I am extending some mercy towards you today because I feel some sympathy for what you are going through and what your father is going through. But I will not feel some sympathy if upon your release you do not do what is required.
39 OFFENDER: Yes, I understand, Your Honour.
40 HIS HONOUR: Do you have any questions?
41 OFFENDER: No.
42 HIS HONOUR: Anything you want to ask me about the order?
43 OFFENDER: No, I understand.
44 HIS HONOUR: All right. Are there any other matters, Mr Gilligan, Ms Trumble?
45 MR GILLIGAN: No, Your Honour. He has got to sign these first.
46 HIS HONOUR: He will have to sign the orders now and we have got them prepared and I am happy, Ms Trumble, if you want to go with my associate - - -
47 MS TRUM BLE: Thanks, Your Honour.
48 HIS HONOUR: - - - to the back of the court while he signs those orders.
49 OFFENDER: Thank you, Mr Grant.
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