DPP v Roseby [2018] VCC 1941 (12 November 2018)

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

TROY ROSEBY

JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2018
DATE OF SENTENCE:	12 November 2018
CASE MAY BE CITED AS:	DPP v Roseby
MEDIUM NEUTRAL CITATION:	[2018] VCC 1941

Sentence: 15 months’ imprisonment with a non-parole period of 10 months. Section 6AAA of the Sentencing Act 1991 declaration of 22 months with a non-parole period of 16 months

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Lewis	Solicitor for the Office of Public Prosecutions

For the Accused	Mr T Bourbon	Victoria Legal Aid

1 Troy Roseby, you have pleaded guilty to one charge of riot, which carries a maximum penalty of 10 years’ imprisonment.

2 The circumstances of your offending are summarised in the summary of prosecution opening on plea (Exhibit “A”) which is appended to these sentencing remarks.

3 The charge relates to your participation in a riot at the Metropolitan Remand Centre at Ravenhall on 30 June 2015. On that day approximately 200–300 prisoners at the centre were involved in a riot, which was the largest in Victoria’s correctional history. It took 15 hours before prison officers, police and fire brigade personnel were able to restore order at the prison and secure all prisoners. At the relevant time, approximately 868 prisoners were housed at the centre. Of these, 102 prisoners were charged, of which approximately 90 have already been dealt with for their offending.

4 The riot was the cumulation of unrest amongst prisoners following Victorian legislation which was to become effective on 1 July 2015, making it an offence to smoke tobacco in Victorian prisons. There had been a number of peaceful protests leading up to 27 June 2015, on which date damage was observed to fences separating the mainstream yards and, on 28 June 2015, another protest involved prisoners refusing to leave the exercise yard for some 20–25 minutes after being required to do so. On 30 June 2015, evidence suggests that the protest by prisoners was planned with the intention of disrupting the routine of the prison in order to force authorities to alter the no-smoking policy.

5 It is not suggested that you were one of the organisers of the riot, which gained momentum from approximately 11.40am. Initially about 120 prisoners congregated and were chanting that they wanted cigarettes, and then prisoners kicked, pushed, and pulled on fences separating three yards, and congregated on a basketball court in Area 2. Prison management directed all staff to withdraw from the yards. By 12.15pm prisoners congregated on the Area 3 basketball court, and a number of them used clothing to disguise their appearance.

6 By 12.20pm prisoners had forced the lock at the central movement control centre, which was stormed by prisoners. Prisoners then made their way towards the health centre and into the canteen, and some prisoners breached the southern door leading towards the gatehouse and potential freedom. A number of prisoners were armed with metal bars and other makeshift weapons, and advanced on the gatehouse, causing staff to withdraw, and some prisoners threw rocks at retreating prison officers. Prison officers remained at the gatehouse entrance, the last barrier between prisoners and freedom. Prisoners then forced entry into the canteen and looted it of cigarettes, confectionery, drinks, sunglasses, and various other items. Meanwhile, the central movement control centre was again secured by staff, but a second attack was launched upon the building, during which various items were thrown at prison staff, but prisoners were repelled using tear-gas.

7 Prisoners then engaged in smashing windows, equipment, and fixtures inside both accommodation and non-accommodation units. This included disabling security cameras, using fire hoses to flood areas, and removing cell doors to free other prisoners. In addition, prison files were destroyed, and fires were lit both inside and outside units. Prison vehicles, including a tractor, were also used to cause damage to buildings and other structures throughout the afternoon.

8 At approximately 4.31pm prisoners again approached the central movement control centre and threw rocks, and used stolen vehicles to ram the gate. Some prisoners were armed with makeshift weapons and pushed a buggy from behind to ram the entrance of the centre. Prisoners then ran in and taunted and threatened prison officers who were separated by a fence. Again, tear-gas was used by prison officers in order to advance and retake the centre.

9 By 11pm the riot had ceased, and prisoners began surrendering and were taken into custody throughout the night. Sixty-six prisoners were transported to Port Phillip and Barwon Prison because they were unable to be housed at Ravenhall due to the damage that had been caused. The remaining prisoners were forced to occupy a reduced and crowded space in strict lockdown conditions.

10 Some prison officers suffered minor physical injuries, including inhalation of chemical agents thrown at them by prisoners. Some reported psychological injuries as a result of the threats and fear inflicted by the prisoners.

11 The Department of Justice estimated the consequential costs of the riot to be $12.1m. This included approximately $6.89m by way of repairs and maintenance as well other costs including additional staffing requirements, transportation, and the provision of alternative interim arrangements.

12 As previously mentioned, it is not suggested that you were an organiser of the riots. However, there is CCTV footage of you being amongst the group of prisoners who gathered at the fences in Area 1. This shows you kicking one of the fences while prisoners in Area 2 kicked the other side. Once the fence was breached you are shown to move into Area 2 and raise your arms triumphantly, and then move over to the fence between Areas 2 and 3, clap your hands, and hug a prisoner who had moved through the breached fences into Area 2.

13 You were also part of a group of prisoners who gathered on the basketball court in Area 2 before you moved through the breached fence into Area 3. There, you attempted to disguise yourself by taking off your long-sleeved jumper and wrapping it around your head.

14 Soon thereafter, you were amongst the group of prisoners who advanced towards the central movement control centre, although you are towards the back of the group of prisoners. This was shown on CCTV footage. You did not participate in the attack on the gates into the centre, but did enter after the gate to it was breached. Unlike a number of other prisoners, you were not armed, and by the time you entered the centre you had taken your jumper off by way of disguise. However, later you again wrapped it around your head to prevent identification as you went towards the canteen, and CCTV footage shows you standing in the canteen doorway and taking hold of a box, and later exiting from the canteen.

15 Later, you were with other prisoners who made their way back through the control centre carrying items from the canteen. You were captured wearing a pair of sunglasses which had been taken from the canteen. Although you were with a number of prisoners who walked back towards the control centre after it had been resecured, you did not take any part in ramming the buggy at the entrance, nor were you throwing objects towards the control centre.

16 At approximately 1.00pm prisoners broke into the Albion Unit. You ultimately entered that unit, which was being ransacked by prisoners. You walked up to a waist-high door leading into the prison officers’ post, kicked it off its hinges, and grabbed a computer monitor from the counter, and threw it towards the floor. This is shown on CCTV footage. You then moved through the raceway separating Areas 1 and 3, by which stage a makeshift barricade had been placed by prisoners at the end of the raceway fences and set on fire. You were last captured on CCTV footage moving through the side of Attwood Unit at about 2.00pm.

17 You were interviewed by police on 4 January 2016. You made admissions to a number of matters, which are accepted by the prosecution as being essentially accurate. You admitted to removing a door from a cell in the Burnside Unit, because you claimed that the person inside the cell was saying that there was something wrong and he needed help. You stated that, with the help of other prisoners, you used an Allen key to take the hinges off the cell door. Police did discover a number of cell doors that had been removed during the riot. It is acknowledged that, were it not for your admission in this regard, there would have been no proof of your involvement in that matter.

18 You are presently aged 29 years, having been born on 28 August 1989. At the time of offending you were aged 25 years, just a couple of months off turning 26 years.

19 You come before the court with a number of prior offences dating back to 4 July 2011. Apart from a number of driving and dishonesty offences, you have been dealt with for possessing prohibited weapons or controlled weapons in 2011 and 2015. Of greater significance is your conviction in the County Court at the Latrobe Valley on 18 February 2013 for an armed robbery, for which you were sentenced to two years’ imprisonment with a non-parole period of one year. Also, on 26 June 2015 you were convicted at Dandenong Magistrates’ Court of making a threat to kill, intentionally damaging property, and unlawful assault, together with dishonesty offences. You were sentenced to an aggregate of 60 days’ imprisonment, with 41 days reckoned as already served, together with a community correction order for a period of 12 months.

20 Given that you were due to be released from custody only 14 days after the occurrence of the riots, it is very difficult to understand why you would have placed your liberty in jeopardy and become involved in this riot. Indeed, you told police in your record of interview that you were unable to give a reason for being involved. However, I do take into account that you also stated that there was not really any place that you could have “sat out” the riot.

21 In a plea on your behalf by Mr Bourbon, the court was urged to note that you had pleaded guilty to this offence, albeit that it was not an early plea, having only been entered on 10 July 2018. This was over three years after the offending, and two and a half years after you had been charged with it. Nevertheless, I acknowledge that this was clearly a chaotic situation at the Metropolitan Remand Centre on 30 June 2015 and, apparently, at committal the role taken on your behalf was essentially to determine whether the actions by you could be said to satisfy the element of the offence of riot. I must say that, once the CCTV footage showing your involvement became available, I do not understand why there should have been so much difficulty in determining that the offence was made out against you. Nevertheless, you are entitled to a discount on the sentence which, otherwise, you would not have received had you pleaded not guilty.

22 In the light of the chaotic situation, which would have required evidence from various sources, including prison officers who would be required to identify you on CCTV footage, this Court acknowledges that there is considerable utilitarian value to your plea, although I do not regard it as a remorseful plea. However, it has facilitated the course of justice and saved a potentially lengthy and complex trial, as well as spared the prison officers, many of whom were psychologically traumatised by this event, from having to give evidence and relive the very frightening experience of mob violence with which they had to deal.

23 I have already acknowledged your cooperation and essential honesty in your record of interview but, unhappily, this did not follow through with an early plea of guilty.

24 Mr Bourbon told the court that you come from a background of trauma and disadvantage. You grew up in Pakenham with your mother, father, and your brother, Adrian, who is two years younger than you. Your father was an alcoholic, who frequently assaulted your mother and yourself and your younger brother. If you endeavoured to protect your mother, your father would take out his violent temper upon you. When you were 11 years old, your mother left your father, taking you and your brother with her. However, your father harassed your mother with such regularity that you agreed to go and live with your father in an attempt to deflect his attention from your mother. This was clearly a very unhappy time for you. It ultimately ended in the most awful circumstances by your father sending you a text message that he proposed to kill himself by hanging, and then proceeding to do so. Fortunately, you were not the one to find him. However, upon a background of behavioural issues which had involved you fighting at school, I have no doubt that these circumstances set you back. You had begun to use cannabis at age 12 and, following your father’s death, you increased your cannabis use to a daily habit, and you were ultimately expelled from school in Year 9.

25 Mr Bourbon told the court that, after you left school, your stepfather, Mr Hart, employed you in his business constructing fences, and you remained in this work for some nine years. Unhappily, your cannabis use appears to have continued, and you were described as mixing with “a negative peer group” outside working hours.

26 The court was told that, when you were 18 years old, you commenced a relationship with your partner, Ms Sullivan, by whom you have two children, a son aged eight years, and a daughter aged five years. The relationship has apparently been a turbulent one with frequent separations. You are said to be close to your son, who went to live with you in December 2017 when you and Ms Sullivan separated. The court was told that your son is attached to you, although, as I commented to Mr Bourbon, it seems that you had been absent from your son’s life for significant periods of time, serving a sentence of imprisonment of one year over 2012/2013 before being released on parole, another of three months later in 2013, and then 60 days in 2015.

27 It would appear that you have been less than a good role model for your son or, indeed, your daughter. It became apparent that, subsequent to committing the offence of riot, you had been dealt with at Dandenong Magistrates’ Court on 28 July 2016 for a number of offences, including driving offences, possessing methylamphetamine, failing to answer bail, committing an offence whilst on bail, and contravening an intervention order which was in favour of Ms Sullivan, your partner and the mother of your children. The sentence imposed by the Dandenong Magistrates’ Court was appealed to the County Court, and on 7 November 2016, you were sentenced to a total effective sentence of one year and two months with a non-parole period of eight months. These offences were all committed prior in time to the riot offence. Obviously, you have already been punished for those offences, and it is no part of my role to impose any further punishment in relation to them. However, they, along with your prior matters, do not inspire optimism for your prospects of rehabilitation.

28 It would seem that there has been some abuse by you of illicit substances for some time. Indeed, Mr Bourbon stated that you had commenced using methamphetamine at the age of 19 years.

29 Mr Bourbon stated that the intervention order is no longer in place, and in court to support you were Ms Sullivan, your brother, and your mother. Whilst you and Ms Sullivan have been separated, you have been living with your mother and your son, and your son has elected to continue living with your mother whilst you are in custody. The court was told that your son suffers from anxiety, and that this has been impacting on his performance at school in circumstances where he has some learning difficulties anyway. There was no medical or other professional material put before the court in relation to your son’s condition, and it was not suggested that the high test of exceptional circumstances in relation to family hardship was made out.

30 Just this morning, a lengthy letter to the court dated 12 November 2018 was tendered from your partner, Ms Sullivan. (Exhibit “1”). She notes that your son is very bonded to you and that, in the nine months while you have been your son’s full-time carer, she has seen you trying to change your life and become a good father. She states that you have taken him to medical appointments and want to be a good role model for him. She states that your son suffers very bad panic attacks and you are the only one he trusts to help him through them. Ms Sullivan suffers from a lung condition of some sort, which makes her unable to work, and she says that she will find it hard to keep up with your son’s medical appointments, although I do note that he is in fact living with your mother.

31 Interestingly, Ms Sullivan’s letter states that you gained full-time employment in an unspecified job and have been working Monday to Friday since 24 July 2018. This seems to be at odds with what Mr Bourbon told the court, namely, that you had been working up until a couple of months ago, but gave up your job in order to spend more time with your son. Thus, it would seem that your recent employment has been relatively short-lived. However, I do take into account in your favour that you have previously demonstrated a capacity for hard work in your fencing work with Mr Hart over quite a number of years.

32 Unhappily, the families of all prisoners usually suffer as a consequence of the imprisonment. However, I do take into account that your son has chosen to live with you and your mother, and that he will miss you whilst you are in custody, and that you will miss him and worry about him.

33 Mr Roseby, be left in no doubt about the seriousness of this offending. By being involved in this riot, you and others jeopardised the physical and mental health of prison officers, as well as that of a number of prisoners who played no role in the riot. As a consequence of the riot, any number of prisoners who were not involved had to experience onerous conditions of imprisonment because of the damage that was done, a shortage of prison accommodation, and security issues generally.

34 Further, it is plain from the 14 Victim Impact Statements, which were tendered as Exhibit “B”, that prison officers have suffered in a variety of ways as a consequence of the frightening and violent behaviour of those involved in the riot. The prison officers speak of fearing for their safety, as violent prisoners, brandishing weapons, breached the front gate of the central movement control centre. Some of the officers suffered physical injuries, but there is a very common and serious theme of a number of the prison officers having felt that their life was threatened on this day, and many of them describe nightmares and flashbacks to the horrible violence, fires, destruction, and smoke-filled atmosphere, where angry prisoners were running riot. Many describe exhaustion and ongoing stress and concerns about the threats that were made to them by prisoners, and the mistrust that has crept into their daily work.

35 A number of staff were off work on sick leave after the riots, and this cast a bigger load on those who could still work, who, in turn, suffered further stress. Those in peer-support roles found the volume of assistance required for fellow prison officers in the aftermath of the riot to be overwhelming. Unhappily, those psychological effects, caused by the memories of this very frightening day, where hundreds of angry prisoners surged through the prison creating mayhem and destruction, will likely remain with those officers, many of whom live in fear that they will have to deal with a situation like that again.

36 In sentencing you I must take into account those eminently foreseeable consequences of harm on the prison officers, as well as the destruction of the prison property itself, and the dislocation of prisoners generally, particularly those who were in no way involved in the riot. Although you were not one of the organisers, it seems that you readily got caught up and enthusiastically participated in a number of aspects of the riot, as previously described, and this is how the mob mentality of a riot becomes out of control and so dangerous.

37 I take into account that, although you engaged in the various acts which I have described, there is no evidence that you participated in the riot for the whole 15 hours before the riot was brought under control. You are first captured on video footage shortly after midday, and the last video footage is about two hours later. It is plain that you were never armed with any weapon, and not directly involved in the ferocious attack on the central movement control centre or the break-in to the Albion Unit, and were not directing other prisoners at any stage of the riot, or identified as having thrown things at prison officers or assaulted them in any way.

38 Having looked at other sentences imposed on prisoners involved in the riots, I agree with your counsel’s submissions that you fall towards the lower level of participation. Nevertheless, this is a serious offence, and denunciation of your conduct, general deterrence, and just punishment must play an important part in the sentencing process. It must be made very clear to those in prisons that if they engage in this violent and terrifying conduct, which disrupts our correctional system, then they will meet with appropriate punishment.

39 On one charge of riot you are convicted and sentenced to be imprisoned for a period of 15 months.

40 I order that you serve a period of 10 months before becoming eligible for parole.

41 I declare a period of 20 days’ pre-sentence detention to be reckoned as time already served under the sentence imposed this day.

42 Pursuant to s464ZF(2) of the Crimes Act 1958 I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with Subdivision 30A of Part 3 of the Crimes Act until a sample of a sufficient standard is obtained for placement on the database. I consider that this order is warranted by reason of the seriousness of the circumstances of the offending.

43 Mr Roseby, you need to understand that if you do not cooperate with the taking of a swab of saliva from inside your cheek, then police are entitled to use reasonable force to ensure that a sufficient sample is obtained for placement on the database.

44 Pursuant to s6AAA of the Sentencing Act 1991 I state that, had it not been for your plea of guilty, the sentence imposed would have been 22 months’ imprisonment with a non-parole period of 16 months.

County Court of Victoria

DPP v Roseby [2018] VCC 1941 (12 November 2018)