Director of Public Prosecutions v Ware

[2017] VCC 1206

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02049

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA WARE

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 August 2017
CASE MAY BE CITED AS:	DPP v Ware
MEDIUM NEUTRAL CITATION:	[2017] VCC 1206

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Gilligan
For the Accused	Mr I. Polak

HIS HONOUR: 

1Joshua Ware, you pleaded guilty to one charge of riot.  You have admitted your criminal history which begins in 2001 with some violence charges for which you received a community based order.  It continues into 2003 with some driving matters and then there is a gap until 2009 when you received a suspended sentence for a driving matter and then to 2013 where there were some drug and gun matters for which you received gaol time.  And in 2014, you received a community corrections order for drug matters; was varied in February of 2015 and subsequently breached it.  So it would seem you have failed successfully to use those types of sentences to combat your drug problem.

2Fourteen victim impact statements were tendered.  They detail the concerns that the prison officers and others had for their safety because of this riot and I have taken their contents into account. 

3The facts of the matter are set out in Exhibit 1, the prosecution opening.  Apart from the matters that I will detail, it is not objected to by your counsel.  I will not go through the facts in any concentrated way.  Any reader of these reasons can read that Exhibit to place the sentence in its total factual context.

4Briefly stated, after a number of protests at the Melbourne Remand Centre relating to the ban on the provision of tobacco products to prisoners, on 30 June 2015, approximately 200 to 300 prisoners at the MRC were involved in the largest riot in Victoria's correctional history.  It took 15 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 because large parts of the MRC were no longer operable.

5Your role specific to you in the matter is set out in Part B of the prosecution opening.  And in summary, involved you moving through the breached fences in area; being the first prisoner to enter the breached CMC; pulling a BA kit onto the floor inside the CMC; disguising yourself with a plastic bag, pillow case and mask; entering the breached canteen and taking items; throwing an object at prison officers following the first breach of the CMC; entering the breached Ballan unit where you tied a pillowcase around your head, struck a wall mounted phone and took possession of a fire extinguisher, added an item to a fire in the Area 2 raceway and locked gates in the Area 2 raceway; opened the Area 2 raceway gates so that subsequently vehicles could drive through it; entering the Chartwell unit, running out of the yard with a mask on your face, entering the breached Chartwell unit and going into the officer's post; exiting the Burnside unit and throwing items on a fire; being part of a mob which attacked the CMC again at about 4.30 where you threw liquid at staff, armed yourself with a metal bar, entered the CMC and taunted prison officers. 

6In relation to the disputed parts of the evidence, your counsel Mr Polak disputed in relation to paragraph 21 of Appendix B of the prosecution opening in which it was stated that at approximately 1.38 pm, you used a key to unlock the two gates in Area 2 raceway, thereby enabling other prisoners to walk more freely between Areas 1 and 3 and at approximately 2 pm, you open the raceway gates and subsequently vehicles used that to pass through.  Having viewed the videos, I am satisfied that that is in fact what you did beyond reasonable doubt.

7An issue arose as to whether you were a planner or organiser of the riot.  It is not alleged that you were but the issue arose.  I am satisfied after reading the transcript of the phone call on 29 June at 2015 that you were aware of the riot prior to its starting and intended to join in it.  You said in that phone call:

"We've already been - we're getting locked down and shit because, fucking, people are about to riot here.  Be not even a week tomorrow and everyone's pushing the fucking fences - like, separating them, like the walls and shit, ready to go fucking - go into the yard, like we go into all - in the one yard and start fucking - turn the fucking prison upside down so you might see us on TV".

8You were not a planner or organiser of the riot but I certainly find you were an enthusiastic participant in it. 

9I was referred to the case of Luca, a decision of the Chief Judge of this court on 24 October 2016.  In his sentencing reasons, the Chief Judge comprehensively set out the relevant principles in relation to sentencing for riot - see paragraph 15 of the reasons - and I accept His Honour's propositions and in particular the proposition that in assessing the culpability of an individual participant, it is wrong to solely concentrate on the acts of an individual participants.  That is because the acts of the individual were not committed in isolation and that is the very fact that constitutes the gravity of the offence.

10A person who participates in a riot bears some responsibility for the collective damage and harm caused.  However, a sentencing judge should nevertheless take into account the extent to which the offender was to blame for the offence and the part which he played in the commissions of the offence.  His Honour acknowledge 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. 

11I accept His Honour's categorisation and denunciation of this riot at the MRC, 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.".

12One of the issues I have to take into account in sentencing you is parity with other rioters that I have sentenced over the last two weeks.  In doing so, I have not delved into a minute examination or comparison of your behaviour with that of other riots.  I have generally looked at what you did and what others that I have sentenced did and made the comparison.  The prosecution submission here is that your actions in the riot were worse than that of Mr Luca.

13They point to the fact that you were aware of the riot prior to it occurring and intended to take part in it; Luca did not.  You were the first prisoner to breach the CMC, Luca was part of the first wave of prisoners to do so.  You were involved in the second breach of the CMC, Luca was not.  You confronted prison officers, Luca did not.  You fuelled fires, Luca did not; on the other hand, Luca drove vehicles and you did not.  Luca's period of offending was between 12.09 pm to 2.46 pm and yours was from 12.06 pm to 4.39 pm and you have a more serious criminal history than Mr Luca. 

14The prosecution submitted that because you were a more active participant in the riot in the Mr Luca, you should receive a greater sentence that the one he received. 

15In mitigation, your counsel urged to me take into account the following matters:

16Your early plea of guilty which is an expression of responsibility by you for your behaviour and has saved the cost and trial of a jury trial and I certainly take that into account and you will be given the appropriate discount.

17He submitted that you played a lesser role than Luca.  I accept the prosecution analysis and come to the conclusion because of that that your role was in fact more than that of Luca.

18He tendered a psychological report from Carla Ferrari, consultant psychologist who saw you in August.  There is a query about at what time she saw you.  In that report, your background was outlined.  You reported no significant issues growing up and described a good childhood until your father passed away when you were 15.  Your mother repartnered after that.  Your mother suffers from multiple sclerosis.  You had little support from your family since using and you accept that that is because of your choice to use drugs.  You had difficulties at school; after completing Grade 10, you obtained employment at Meatworks and went and lived in Queensland. 

19You have been employed in various labouring roles within the construction industry, on occasions being dismissed because of your drug use.  Your counsel told me that you are currently employed in the labouring occupation.

20You had a relationship with a Rebecca Stanfield with whom you had an eight year old daughter for approximately 12 years.  That ended four years ago because of your drug use.  You still maintain regular contact with your daughter.

21You gave an account to Ms Ferrari of your involvement in the riot.  She said you appear to minimise your involvement.  You gave her some factual detail about what you actually thought you did. However what you said to the psychologist must be treated with a great deal of caution because in paragraph 64, she said that at the time of the assessment you were under the influence of drugs. 

22She conducted a number of tests upon you and came to the conclusion that although you had no evidence of an entranced personality disorder or a psychotic disorder, or any features of mania, you had issues with depression and anxiety and of course with drugs.  She said in paragraph 71:

"He's considered a high risk of re-offending, mainly due to his continued substance abuse and pre-contemplative attitude towards ceasing.  However, this can be mitigated if he is supported to abstain from substance abuse which increases his risk and is highly co-related to his criminal misconduct".

23Mr Polak, pointed to the issue of delay and submitted that if the matter had been dealt with at an earlier, there would have been consideration of principle of totality and concurrency with other sentences that you, after the riot, had been sentenced to and I accept that that is a legitimate sentencing factor here. 

24He submitted that since the riot you have been placed in a more difficult situation in gaol because of the riot that, of course, affected many many prisoners but the effect of that people who took part in riot is substantially diluted because it was self-inflicted.

25He submitted that you could rehabilitate yourself in that you can overcome your problems with support. 

26Taking into account all the matters put by both parties and the cases referred to, in sentencing you, I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community to seek to ensure, as far as possible offenders are rehabilitated into society.  I express my denunciation of the behaviour.

27The basic purposes for which a court may impose a sentence or punishment of general deterrence, specific deterrence which has a role to play here because of your criminal history, general rehabilitation, denunciation and protection of the community.  I cannot come to any conclusion that you have good prospects of rehabilitation.  To turn up for an assessment by a psychologist, the purpose of which is to produce a report to be tendered to a court, indicates to me that you really have done very little about your drug problem. 

28To take into account denunciation and protection of the community.  In 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 that it has had upon prison officers and other staff that were caught up in this riot.

29Taking all those factors into account, on the charge of riot I sentence you to a term of imprisonment of 30 months. I direct that you serve a non-parole of 18 months. There is no PSD. I declare pursuant to s.6AAA of the Sentencing Act that if you had proceeded to trial and you were convicted by a jury, you would have a received a sentence at least of four and half years with a non-parole of three years. 

30Are there any other orders I need to make?

31MR HAYWOOD:  No, Your Honour

32HIS HONOUR:  No, thank you.  Take Mr Ware out, thank you.  Adjourn the court thanks.

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