Director of Public Prosecutions v Walmsley

[2017] VCC 441

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00294

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEN WALMSLEY

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2017
DATE OF SENTENCE:	12 April 2017
CASE MAY BE CITED AS:	DPP v Walmsley
MEDIUM NEUTRAL CITATION:	[2016] VCC

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Mr J Henderson	OPP
For the Accused	Ms J Pissale	Slades and Parsons

HIS HONOUR:

1       Ben Walmsley, you have pleaded guilty to one charge of riot.  The maximum penalty for this offence is 10 years imprisonment. 

2       You have also consented to this court hearing one related summary charge of failing to answer bail.  You plead guilty to that charge and it carries a maximum penalty of two years imprisonment.

3       On 24 October 2016, the Chief Judge of this court sentenced a co-offender Johnathon Luca for the offence of riot.  I adopt His Honour’s overview of the events of 30 June 2015.   

4       His Honour said this:

"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 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.  The riot 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 repairs and maintenance of the MRC."

5       I now turn to your specific role as outlined in Part B of the Prosecution Opening. Your actions were captured on CCTV footage and I make the following points about your offending:

·    Your actions span the period 11.45 am to 2.55 pm.

·    At 11.45 am, you were with a group of prisoners gathered at the junction of areas 1, 2 and 3, who refused to return to their cells after a routine muster.

·    After midday, fences dividing these areas were breached and you were part of a group of prisoners who walked towards the CMC.  You did not disguise yourself at this point.

·    At 12.10 pm, you were among a group of prisoners pushing on the gates to the CMC, whilst prison officers were trying to secure them.  You were located near the front of the crowd whilst this was occurring.

·    A group of prisoners breached the CMC.  You did not participate in the destruction of the CMC.  The prisoners also breached two external doors, one leading to the canteen and health centre and the other towards the Gatehouse and main exit from the prison.  You walked through the CMC, attempted to disguise yourself and were observed eating items removed from the canteen.

·    At 1.00 pm you entered the Attwood unit after it was breached and ransacked by other prisoners.

·    At 1.45, prisoners forced entry into the Billingham Unit.  You entered with other prisoners and began damaging the interior.  You had again tied an item of clothing across your face in an attempt to disguise yourself.

·    You entered the Officer’s Post in the Billingham Unit and began damaging property including throwing a telephone receiver against a wall, throwing a computer monitor screen onto the ground and pushing another item from the desk onto the floor.

·    At approximately 2.55 pm, you entered the Attwood Unit and graffitied the front console of the Officer’s Post.  You were still disguised at this point.

·    You were not involved in the riot after this time.

6       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.

7       In Luca, the Chief Judge detailed the legal principles that attach to the offence of riot.  I 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. 

8       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 it generated a high level of fear and alarm.

9       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 I have already identified.  I accept that your offending was at a lower level than your co-offender Luca.

10 Whilst you did not play the role of a ringleader or organiser, you did participate in the riot for about three hours when it was in an acute phase. You were with the group of prisoners who gathered before midday at the junction of Areas 1, 2 and 3 and who refused to return to their cells. The riot gained momentum from this time. When the fence between Area 1 and Area 2 was breached, you walked through and entered Area 2. You were with the group of prisoners who walked to the CMC and began pushing on the gates. You were near the front of the crowd at this time. Once the gates were breached, you entered the CMC. Later, you entered various units and caused damage in both the Billingham and Attwood Units.

11      I now move to your personal circumstances.

12      You are 24 years old.  Your family circumstances were unsettled.  Your father was a heavy drinker and your mother was a heroin user.  When you were 12 years old your parents separated after your father was sentenced to four months imprisonment for family violence.  Your mother’s heroin use escalated at this time and you were sent to live with an aunty.  When your father was released from custody, you went to live with him in Geelong.

13      You completed year 10 at Western Heights College.  After leaving school, you obtained a pre-apprenticeship in panel beating.  This was followed by a period of three years working in the auto repairs industry.

14      Your life started to go awry when you commenced using cannabis at the age of 18.  You quickly developed a habit that overrode your desire to work.  You became an unreliable employee and eventually lost your job.  Your relationship with your father became strained and, at the age of 20, you moved to Frankston to live with your mother.  Whilst she was stable on methadone, your drug use escalated and, inevitably, you commenced offending.

15      In September 2014, you appeared at the Frankston Magistrates’ Court for a large number of offences that included reckless conduct endangering serious injury, contravene family violence safety notice, criminal damage and possess ecstasy.  You were sentenced to three months imprisonment and a 12-months community corrections order (CCO).  The CCO had conditions that included a requirement for you to undergo treatment for drug abuse.

16      On 10 March 2015, you were remanded for further offences that were finalised at the Frankston Magistrates Court on 11 August 2015.  You were sentenced to an aggregate period of imprisonment of six months.  One hundred and fifty-seven days pre-sentence detention was declared.  You were released from custody on 6 September 2015 and then charged on summons with the present offence on 17 December 2015.

17      On 9 November 2016, you were remanded in relation to an extremely large number of offences that are yet to be finalised.  The matters are listed for hearing at the Dandenong Magistrates’ Court.  It is alleged that your offending predominantly covers the period 7 September 2016 to 8 November 2016, although some offending is also alleged to have occurred on 1 June 2016 and 3 August 2016.  Your counsel told me that after your release from prison in September 2015, you were using ecstasy and ice and that this provided the context for your further offending.  

18      Given this history, I am guarded about your prospects for rehabilitation.  You have a significant drug problem and you have found it very difficult to break with the cycle of drug abuse and serious offending.

19      Your relative youth is an important matter for me to consider and it requires me to give appropriate weight to your rehabilitation.  However, the weight to be given to that principle is diminished to some extent, because of your criminal history and the seriousness of this offending.  It is to your credit that you have recently completed a substance abuse program and a relapse prevention program whilst on remand.

20      In imposing sentence, I take account of the fact that this will be your first lengthy sentence of imprisonment and that you were sentenced to a term of six months imprisonment on 11 August 2015, a date after the commission of the present offence.  

21      You entered an early plea of guilty.  The plea is indicative of remorse.  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.

22      After the riot you were held for just over two months 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.”

23      Parity is a relevant matter. In dealing with this issue, I must make due allowance for the respective criminality of each offender and I must make due allowance for their differing antecedents, personal circumstances and mitigating circumstances.

24      I have already referred to the case of Luca.  Although you were less culpable than him, he was a younger offender with better prospects for rehabilitation.

25      On the charge on the indictment, you are sentenced to 25 months imprisonment.

26      

On the related summary offence, sentenced to be imprisoned for one month.  I fix a minimum term of 15 months before you will be eligible for release on parole. I note that you were remanded in custody on the riot at a filing hearing on

10 February 2016.  I therefore declare 61 days pre-sentence detention.

27      Had you pleaded not guilty and being found guilty after trial, I would have sentenced you to a term of three years and six months imprisonment with a minimum of two years and six months.  Is there anything else?

28      MS VAN DAN AKKER:  Your Honour, can I just confirm.  Is the sentence on the bail charge concurrent?

29      HIS HONOUR:  It is concurrent.

30      MS VAN DAN AKKER:  Thank you, Your Honour.

31      HIS HONOUR:  Nothing Mr Dean?

32      MR DEAN:  No nothing, Your Honour.

33      HIS HONOUR:  All right, yes thank you.  Mr Walmsley can be removed. 

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