Director of Public Prosecutions v Woods

[2018] VCC 1363

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00603

DIRECTOR OF PUBLIC PROSECUTIONS

v

KALEB WOODS

---

JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2018
DATE OF SENTENCE:	23 August 2018
CASE MAY BE CITED AS:	DPP v Woods
MEDIUM NEUTRAL CITATION:	[2018] VCC 1363

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle
For the Accused	Mr C. Thomson (Plea) Ms. N. Valos (Sentence)

HIS HONOUR: 

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

2You have admitted your prior convictions.  Your prior criminal history to the point of the riot on 30 June 2015 is extensive.

3The 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 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 (that is the 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 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].

4The 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.

5For their part, the prison officers:

·    were forced, along with public servants and contractors to flee from various parts of the prison;

·    the prison officers repelled the attacks with riot gear and tear gas;

·    they used personal protective equipment and breathing apparatus;

·    some suffered physical injuries through chemical inhalation and through some of the interaction with prisoners; and

·    some suffered psychological injuries to varying degrees which, for some staff members, are ongoing.

6I have already said something 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.

7Your offending is outlined in the Summary of Prosecution Opening.  It was captured in part on the prison’s CCTV footage.  A summary of your role is as follows.  You:

·    had been remanded in custody on a charge of armed robbery on
1 June 2015

·    but during the riot you joined the rioting mob of prisoners and moved with them towards the CMC;

·    you moved with rioting mob from the CMC to the canteen, towards the gatehouse and then back to the canteen;

·    you joined in taking items from the canteen; you moved back with the mob through the CMC and into the area 3 yard;

·    you attempted to disguise your face with black material;

·    you entered the Albion unit and went into the offices post;

·    you assisted in lighting a fire of some refuse at a barricade set up in a raceway;

·    you were part of a group applauding prisoner Kelly who damaged fences with a tractor; and

·    you were part of the group on the second successful breach of the CMC pushing and kicking at the gate whilst holding a tennis racket.

8Your involvement in the riot lasted between about 12:15 pm – 4:30 pm – a period of about four and a quarter hours.

9You were interviewed on 27 November 2015 and made a no comment record of interview.

10On 2 November 2015 you were sentenced to 3 years and nine months with
27 months to serve, on the count of armed robbery, for which you were being held.

11On 21 December 2015 you were charged with sabotage.

12Since that date, this matter has had a long history.  You were originally represented by lawyers who in June 2016 negotiated with the Crown for the withdrawal of the sabotage charge and sought to resolve the matter.  Those lawyers had earlier made an unsuccessful application for summary jurisdiction on your behalf.

13On 11 October 2016 you entered a plea of guilty to the charge of riot; however by 22 November 2016 you had new lawyers and you changed your plea.  A committal was listed for 24 March 2017, by which stage you were unrepresented and had maintained your plea of not guilty.

14This matter has changed again since that day, where you now again have lawyers, and you have now entered a plea of guilty to the charge of riot.  The plea hearing was endangered on several occasions by your severe mental health issues.  I shall return to the effect of these matters in due course.

15You have remained in custody since 1 June 2015, but you do not have any presentence detention for this matter because of the sentence you are presently undergoing.

Analysis of your role

16The Crown submits that your offending was a serious example of conduct on the day; however you were neither a planer nor organiser.  Although you were armed briefly with a tennis racket, you neither confronted nor intimidated anyone with it.

17So far as it may be useful to make comparisons with other participants in the riot, the Crown refers to the actions of Jonathan Luca, who was sentenced by Chief Judge Kidd almost 2 years ago. It is difficult to draw real comparisons between you two, but it may be observed that Luca was armed at various stages whilst you were armed briefly and not for confrontational purposes.  Luca breached three units whilst you breached one.  Luca did not confront or attack any prison officers whereas you were involved in the second successful breach of the CMC which did involve the mob confronting of prison officers.  Luca opened cell doors to free prisoners whereas you did not.  Your involvement in the offending lasted longer than Luca.  Luca damaged several buildings, where as you set up a fire at a barricade.  Finally, Luca drove vehicles, you did not.

18In terms of background, Luca had a very short history where as you have a long history of criminal offending.

19Furthermore, in analysing your role, I take account of the 14 victim impact statements from prison officers at the MRC.  None of the injuries or difficulties that they have suffered are directly attributable to your conduct.  However, 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 to come.  It is apparent that the actions of all of you have taken a toll on staff who were exposed to your criminal acts.

20Although I consider your conduct on the day serious, there is little point in providing too close or too precise an analysis of where I consider your role to sit.  That is because in the end, I consider that your mental health issues mean that you are not a suitable vehicle for the expression of general deterrence.

21For similar reasons, your prospects of rehabilitation are poor unless a way is found to more effectively deal with your mental health issues.

22I now turn to your personal circumstances.

23You are 27 years of age and were born in December 1990.  You are the middle child of five siblings, or six including you.  Your parents came to Australia from New Zealand in the late 80s.  You were placed in foster care when you were four years old.

24Between the ages of four and nine you were sexually abused by carers until you were returned to the custody of your mother.  You received $117,000 compensation from the state because of the sexual abuse you suffered.  Your older sister Rachel put this money in a long-term savings account and you are pursuing further civil action against your abusers.

25You started using cannabis in your early teens.

26In your teen years you enjoyed playing rugby and after leaving school had various employment as a painter.  You have an offer of employment from your previous employer, Jason White, upon your release.

27You have a long prior criminal history with previous appearances for robbery, attempted robbery, injury offences, theft and a myriad of antisocial offences.  Of note, there are also half a dozen breaches of youth supervision orders, and in 2013, breach of a community corrections order for non-compliance and further offending.

28As I have already alluded to, you have a long history of mental health issues.  You have been diagnosed as schizophrenic and in your time in custody and particularly through the course of 2018 you have suffered from this.  The prison authorities have had difficulties with your confronting behaviour and also providing you with adequate mental health care whilst in custody.  By this observation, I do not mean to suggest that your behavioural and conduct issues arise from anything but your mental illness.

29Your illness has been such that you have not been granted parole and you are likely to serve the whole of the sentence imposed on 2 November 2015 of three years nine months.

30You have been assessed by Forensicare psychiatrists on several occasions since you have been in custody, but I refer especially to the reports of
10 January 2018, 22 March 2018 and 1 August 2018.  Dr Adam Deacon noted in his last report that although you have the capacity to respond to antipsychotic medication, there is a consistent pattern of you becoming mentally unwell and destabilising even when taking that antipsychotic medication.

31Mr Doyle, who appeared on behalf of the Crown submitted that your illness should be viewed as follows:

It is well documented that Mr Woods suffers from a serious and enduring psychiatric illness and at times over the last 3 ½ years has been acutely psychotic.  For extended periods he has been considered sufficiently mentally unwell so as to be unfit for trial.  It seems that at other times his psychiatric state has been stable.  There is no evidence regarding his psychiatric states the time of the offending.  However Dr Best in her report says that 'his impaired mental functioning as a consequence of his schizophrenia is likely to have the potential to affect his capacity to exercise appropriate and make rational choices'.  However Mr Woods has a long history of violent offending which cannot be explained purely by his psychiatric state.  Substance abuse has been an issue as well as a tendency towards violent and destructive behaviour.  It is conceded that it is likely his psychiatric illness is likely to have had some impact on his decision to participate in the riot.  Accordingly some moderation of general and specific deterrence is appropriate.  Principles five and six of Verdins are appropriate to be applied.

32Mr Thompson who appeared on your behalf submitted that the appropriate sentence in this case, is a period of imprisonment combined together with a community corrections order.  The Crown agrees with that submission.

33Furthermore, when I look at the overall history of this matter, it seems to me that you have lost considerable opportunity for some concurrency of your sentence due to the fact that your illness has interfered with your judgement, both in relation to retaining lawyers, and as to making the appropriate plea in this matter.  It is also apparent that you have lost time due to the fact that you have spent large parts of this year (because of your schizophrenia) unfit to stand trial.  In my opinion, due to the fact that you have lost the opportunity to have much of your sentence made concurrent with the sentence that you are undergoing, I intend to broadly take this into account in the sentence I impose.

34Mr Thompson submits that all the limbs of Verdins are applicable.  I have no evidence as to your mental state at the time of your offending.  Rather, I consider the situation was best summed up by Dr Best in her report as set out in Mr Doyle’s submissions, as I have just quoted.  Furthermore, I consider that the affidavit of Ms Jennifer Hosking sets out the considerable burden that you have felt in custody due to your mental illness.

35You were assessed as suitable for a community corrections order, but only reluctantly. The risk assessment tool considers that you have a high risk of reoffending.  Moreover, I note the breach of your community corrections order in 2013.  I note that when you were assessed for a community corrections order you denied all involvement in the riot and the assessing officer considers you have only limited insight into your offending.

36Nevertheless, at the prompting of both parties and with the assent of the community corrections officer I propose to place you on a community corrections order for a period of nine months.  That is at the end of the sentence that I will impose.

37Now, Mr Woods, I need you to listen carefully. 

38There are a number of core conditions to a community corrections order, which everyone who is placed on the order must comply with, and I need to read them to you.

39The first is that you must not commit any offence, inside or outside Victoria during the period of the community corrections order, punishable by imprisonment.  Whether imprisonment is imposed or not.

40You have got to comply with the requirements of the order and the regulations and one of those means that you must report to and receive visits from community corrections officers during the period of the order.

41You must report to the community corrections office within two clear working days of the order coming into force.  So that will be two clear days after you are released from prison.

42You have to notify the community corrections office of any change of address or employment within two clear working days.

43You must not leave Victoria without permission of the office of corrections, and you must comply with any direction given to you during the period of the order.

44So, Mr Woods, do you understand those conditions?

45OFFENDER:  Yes, I do.

46HIS HONOUR:  Now, the order that I am proposing for the community corrections order is as follows.  I intend to put you on a community corrections order for nine months, you will be placed under supervision and a mental health condition and judicial monitoring condition is attached, which means you have to come back to court on one or two occasions.  The only thing that I am trying to achieve by that is that once you are released from prison, I want the office of corrections to help you setup a mental health plan and to put you in touch with a GP that can help monitor your health when you get out of prison.  Do you understand what I am trying to achieve?

47OFFENDER:  Yes, sir.

48The order of the court will be, on the charge of riot, you are convicted and sentenced to a period of ten months' imprisonment.  That sentence is to be served concurrent with the sentence you are currently undergoing.  At the conclusion of that sentence you are to undergo a community corrections order for a period of nine months.  In addition to the core conditions there are three special conditions; (1), you are to submit to supervision of the office of correction for the period of the order; (2), you are to submit to testing, assessment and treatment under the mental health condition and; (3), you are to come back here for judicial monitoring on a date four weeks after the commencement of the order. 

49

Mr Woods, what I propose is that your release date will be

28 June, next year, and you have got to come back before me on 30 July.  It will be at 10 o'clock. 

- - -