DPP v Boreham [2017] VCC 1092

Sentence: 22 months' imprisonment, non-parole period 11 months.

1 Nathan Boreham, you have pleaded guilty to one charge of riot, which carries a maximum penalty of ten years' imprisonment. Your offending occurred on

30 June 2015 at the Metropolitan Remand Centre ("MRC"). You were 20 years old at the time of the offending, very nearly 21. You are now 23 years of age.

2 A prosecution opening was tendered on the plea. There was no issue with the facts. It is therefore sufficient for me to provide an overview of the events.

3 I turn first to that overview of the events. I have previously sentenced some of your co-offenders, including Johnathon Luca[1], for their roles in this riot. The prosecution opening as to the overview of the events was in the same terms as that put on their pleas. I adopt the same remarks I made previously regarding the overview of events that occurred on 30 June 2015.

4 On that day 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 held by prisoners at the MRC in the days leading up to the riot.

5 During the riot fences were breached, prison vehicles, including 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.

6 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 CMC was breached for a second time. It had essentially ceased by 11pm.

7 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.

8 Following the riot a large number of the prisoners had to be relocated to other prison facilities due to large parts of the MRC no longer being operable.

9 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. In all, some 102 offenders have been charged in relation to the riot. There is evidence that the riot was planned, though I hasten to add that you were not involved in this.

10 I now turn to your specific role in the events of 30 June 2015. At the time of the riot you were on remand on unrelated matters and housed in the Bellbridge Unit in Area 3. You had arrived at the MRC the day before the riot on 29 June. At the 11.45 am muster, or routine muster, you and a number of other prisoners from Areas 1, 2 and 3 remained in the outdoor yard and refused to return to your cells, in protest to the impending cigarette bans. Prisoners who did not want to participate in any protests had already returned to their cells at this point.

11 Around 11.59 am you were in the outdoor yard of Area 3, walking along the fence line that separates areas 2 and 3. Over the next few hours you would change your clothing several times in an effort to conceal your identity.

12 The fence between areas 2 and 3 was breached by prisoners, who then amalgamated as one larger prisoner body in area 3. At approximately

12.09 pm the amalgamated group was facing in the direction of the CMC and shortly after this began, this group began to move towards the CMC. You were at the front of this crowd.

13 Upon reaching the CMC you stood right against the building beside a closed double gate, which is a clear point of entry to the CMC. You then moved towards the fence line to your immediate right and pushed this fence several times with your hands. You did not damage the fence. At approximately 12.22 pm, following a gate to the CMC being forced, the group of prisoners at the CMC, including you, rushed towards and stormed en masse the CMC. You were again at the front of the crowd and you pushed your way through a narrow gate into the CMC.

14 A short time later a large group of prisoners ran from the CMC to the canteen. A roller door of the canteen was jemmied open and the group of prisoners began to storm this secure area. Around 12.30 pm you emerged from the canteen, eating and drinking items.

15 At 12:43 pm prisoners forced entry to the Ballan Unit in area 2. You entered and took several items from behind an officer's console, keeping some for yourself and handing another to a passing prisoner. Minutes later you were among a crowd of prisoners who spilled through a fence breach at the junction of areas 1, 2 and 3, into area 1. You went through a gap in the fence and walked across the grassed area towards the Attwood Unit. Again you went behind the officer's console. You delivered a series of kicks to a closed door directly behind the desk area but failed to gain access.

16 You then moved into area 2 and attended at the fence between the Billingham and Ballan Units. You watched several prisoners in possession of a jemmy bar attempting to try and wrench the fence open. The fence was damaged slightly but was not opened. You then started to pull at the gap in the fence with your hands, leaning back as you grabbed the fence, you placed your foot against the fence and used your entire body weight to try and widen the space.

17 At 1.25 pm you were in the area 4 yard between the rear of the Cambridge Unit and the Recreation Centre with another prisoner. That prisoner was in possession of a metal pole at this time. You pointed in the direction of the Chartwell Unit, also located in area 4. You picked up a metal pole off the ground and walked towards this Unit. A short time later you proceeded to run towards the Chartwell Unit and you appeared to call out to that other prisoner.

18 You have reached an external door of the Chartwell Unit. You watched as the other prisoner used the metal pole to smash at the door of this unit. Within a minute the door had been breached and you and several prisoners entered. You were not armed at the time you entered.

19 Around 1.45 pm you entered Day Room C of the Chartwell Unit. You were wearing a riot mask with the visor up, exposing your face. You had obtained a set of keys and attended a closed cell, using those keys, in an attempt to liberate prisoners from their cells. These were high-risk management prisoners. Simultaneously, another prisoner used a pole to try and force open a cell door by striking it repeatedly.

20 You were once again at the front of the crowd of prisoners, looking on at prisoner as he was ramming the fence separating area 3 from Area 4. That prisoner was using a tractor stolen from the horticulture area to ram the fence and the fence was significantly damaged. This was around 2.03 pm.

21 Around 2.19 pm you were inside the Burnside Unit in area 3, where you changed your clothing again. You left this unit only to return several minutes later with a torch. You were shining it in the direction of the locked cells.

22 Your participation in the riot concluded around 3.19 pm, when you were amongst a crowd of prisoners congregating in area 1 yard near the CMC. At this time prison officers were standing at the fence line with their shields up. You then moved with the prisoner crowd into the area 3 yard and hovered near a trailer full of concrete, rocks and debris.

23 In your correspondence and recorded prison phone calls, via the ARUNTA system, subsequent to the riot, you made admissions to participating in this riot, repeatedly stating that you enjoyed yourself and had "fun". You reiterated this to police when you were formally interviewed. You observed that you had been seen on footage shown on the television news and you found this exciting. You stated you intended to "YouTube" yourself.

24 When you were interviewed by police on 29 September 2015 you made a number of admissions regarding your involvement in the riot, including participating in damaging and looting. In several of your responses you seek to downplay your involvement. You stated that you, "basically had no choice", but to follow the group because, "people were turning on people for not participating and stuff".

25 I turn to the victim impact statements. The prosecution tendered 14 victim impact statements on the plea. These statements had been made by Corrections officers who were working at the MRC on 30 June 2015. There were a number of common themes arising out the victim impact statements regarding the impact of this event on the officers. Primarily, that the riot had a significant negative impact on those working on that day. Several have reported difficulties in both their professional and personal lives since the riot. Some have experienced flashbacks which have disturbed their sleep. The stress has affected their satisfaction at work and has also affected their home life and relationships with their families. Some sustained physical injuries, although it is not put by the prosecution that you were responsible for inflicting any of those injuries directly. It has affected the way that they now interact with the prisoners on a day-to-day basis.

26 I now turn to the relevant legal principles with respect to riot. In the case of Luca I detailed the relevant the legal principles regarding the offence of riot, which emerge from both Victorian and interstate authorities[2]. I repeat those principles here:

• 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. This 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 prisoner was to blame for the offence, and the part which he 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;[3]
• 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. [4]

27 I now turn to an assessment of the gravity of the offending and, in particular, your specific role. I am required to assess the gravity of the overall riot and your contribution to the riot in light of the above principles concerning the offence. I made a number observations about the overall gravity of this riot in sentencing your co-offender, Luca. I adopt and repeat those observations now.

28 I consider this to be a very serious example of this type of offence. It is hard to make a comparison of riot offences given there are so few, but the sheer scale of this prison riot makes this 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 harm which this riot generated; the sense of complete anarchy depicted in the CCTV footage; or the breathtaking scale of damage and loss actually caused.

29 While minor physical injuries and psychological harm was caused, thankfully, this was not a riot which resulted in serious physical harm or injury. I take this into account but, self-evidently, a prison riot of this scale carried with it a very high degree of risk to the personal safety and security of the prison officers and other public servants involved. It caused significant fear.

30 As to your specific role, I accept that your participation was not premeditated. You were not directly involved in all the damage that was occasioned. You did not physically attack any Corrections or police officer and you did not engage in any violence against any person. I further accept that you were not a ringleader. Your period of involvement was confined to the period from about midday to about 3.20 pm.

31 I also accept that the timing of your arrival at the MRC, in combination with your age, placed you in a more vulnerable position than other prisoners who had established themselves at the MRC.

32 I find, as was properly conceded by your counsel, however, that you were more than a "mere" participant. That is, some of your actions amounted to an active prosecution of this riot: kicking a closed door; arming yourself with a pole; attempting to wrench, further open a gap in a fence and using a set of keys to attempt to liberate prisoners from their cells. You were at the front of the crowd during the first breach of the CMC. You conducted a search of cells in the Burnside Unit with a torch by yourself. You obtained a set of keys in an attempt to liberate prisoners. Your overall conduct showed independent thought and engagement. Your conduct went beyond aimless behaviour or "sheep-like" behaviour, under the influence of other prisoners, as was submitted by your counsel.

33 Counsel for the prosecution referred to the conduct of your co-offender, Luca, as a yardstick and submitted that the objective seriousness of your offending was on a similar level to Luca. I do not accept that submission. I assess your co-offender, Luca, as being a more active prosecutor of this riot than you were. The extent of the damage caused by Luca and his level of encouragement and assistance to other prisoners differentiates his role.

34 Your counsel submitted that the comparison with Luca alone was "artificial" and "binary". Your counsel referred to several other MRC riot sentences as demonstrating the range of sentences available, and placed reliance on the sentence in the matter of DPP v Davis[5] as being comparable. Your counsel submitted that your conduct was, "at maximum no higher than Davis". While I place you below Luca, I put you above Davis. These comparisons, of course, involve questions of degree. I think Davis was more of a follower than you were. On occasions you actively engaged in the riot on the front line, as evidenced by your attempts to widen the gap in the breached fence at one point, and by your attempts, at another point, to liberate prisoners from their cells.

35 Your counsel submitted that you were immature, vulnerable and scared by the unfolding events and placed reliance on a call you made to your mother during the riot. While I accept that your age and recent attendance at the MRC gave rise to some level of vulnerability and immaturity, I am unpersuaded that you called your mother out of fear. In my view, you opportunistically placed this call in the chaotic context of the riot. You have repeatedly made comments about how much fun you had during the riot. I do not accept that you were acting out of fear.

36 I turn to your criminal history. You have a long criminal history, commencing in 2008 when you received your first sentence in the Children's Court. You have a significant history of Children's Court matters involving a range of offending including violence, property damage and dishonesty. You have served multiple periods of youth detention, largely for various dishonesty and driving offences. You served eight months youth detention in 2013 for recklessly causing injury.

37 You have already been subject to several terms of adult imprisonment imposed in the Magistrates' Court, largely for driving and dishonesty offences. In 2014 you received a combination sentence of three months' imprisonment, with a

12 month Community Correction Order ("CCO"). On 23 January 2015 you received a sentence of five months with a nine month CCO, similarly, for the offence of reckless conduct endangering serious injury. Your CCOs contained treatment and rehabilitation conditions. Your most recent prior matter was a sentence imposed on 16 April 2015, where you were dealt with for contravening your 2014 CCO and re-sentenced to 21 days' imprisonment.

38 Your criminal history is relevant to my assessment of your prospects for rehabilitation and the need for specific deterrence.

39 I turn to the subsequent matters. There are a number of subsequent matters.

I will briefly outline the chronology of your proven subsequent matters, as they are relevant to a consideration of your prospects of rehabilitation. It is also relevant to assess whether, as your counsel submitted, I should take into account a period of time you spent on remand which has not been applied as pre-sentence detention to any sentence. I will come to those matters shortly.

40 You were sentenced on 31 July 2015 to 12 months' imprisonment for various driving offences, dishonesty offences and reckless conduct endangering serious injury. You were on remand for these matters during the riot. You served your sentence and you were released in early July 2016.

41 You have committed offences on three occasions since your release. On

5 August 2016 you committed the offence of knowingly dealing in proceeds of crime. On 7 August 2016 you committed the offence of theft of a motor vehicle. On 8 August 2016 you committed a number of driving, dishonesty and drug offences, as well as possession of a weapon and negligently dealing in proceeds of crime. You were remanded on these offences on 27 August 2016 until 29 November 2016, when you were sentenced. You were convicted and sentenced to a 12 month CCO. The period of remand, between 27 August and 29 November, was not formally applied as pre-sentence detention. I will return to this.

42 On 9 March 2017 you were remanded on new charges, which remain pending, unproven matters, and on 20 March 2017 you were remanded on the charge of riot, to which you pleaded guilty. I am also told that you have a contravention hearing listed in relation to your 2016 CCO. I hasten to add that I do not take any pending, unproven matters into account in this sentencing exercise. I, indeed, have otherwise not been told anything about your performance on this 2016 CCO.

43 I turn to your personal details. As I have already stated, you are now 23 years of age. You have the support of your family and girlfriend. Your mother has visited you while you have been in custody, as has your girlfriend. Your girlfriend attended Court for your plea hearing. You have a good relationship with your three brothers. This support is a protective and positive factor towards your rehabilitation.

44 Two of your immediate family members have significant health issues. Your mother was unable to attend Court on your plea because she is currently undergoing chemotherapy and your youngest brother has a diagnosis of epilepsy. Your counsel submitted that you are committed to assisting your family upon your release. I accept that that is what you wish to do.

45 Your father left the family when you were around seven years old and you grew up in the family home with your mother and siblings. You completed primary school in Ringwood and completed Year 9 at a high school in Croydon. You were an average student at high school and eventually left school when you were in Year 12 due to a developing drug problem.

46 You commenced using drugs at age 15 years, in a social context with friends. You were using methamphetamines, known as ice, and the usage escalated around 18 years if age and continued. I am told that your history of dishonesty offending is related to your drug use.

47 As for your youth, you were 20, almost 21 years of age at the time of the offending and you are now 23 years of age. The youthful offender principles apply, moderating the need for general deterrence, and emphasising the need to promote your rehabilitation.[6] That said, while your youth remains an important consideration and requires more weight to be given to encouraging rehabilitation than would be the case for an older and more mature offender, the nature of this offending means that the importance of youth must give some ground to the consideration of general deterrence. It must be borne in mind that you are also a youthful person with a considerable criminal history.

48 You indicated your plea of guilty at an early stage, indeed, you entered your plea of guilty for the first time at your committal hearing.

49 There is a signification utilitarian benefit to the community for which you will receive a discount. It also shows a willingness on your part to facilitate the course of justice.

50 You made admissions to participating in the riot and, as I said, entered an early plea. Your counsel relies on these matters as evidence of your remorse and some insight in relation to this offending. I accept these propositions and give them weight in sentencing you.

51 Your counsel submitted that you can see a future beyond custody with a focus on returning to your family and undergoing further study or entering the workforce. You are still a relatively young man with ongoing family support and more recently you have sought to improve yourself by study and engagement with drug programs.

52 There are, however, a number of matters that concern me. You already have a long history of offending where you have had, and not taken up, opportunities to address your drug issues in the community. Previous periods of custody and detention did not deter you from this riot offending. Despite your history this riot presented to you as an opportunity to have "fun". Since your release in July 2016 you have continued to offend. I am referring to the offences you committed in August 2016 for which you were sentenced in November 2016. This all explains why I am guarded about your prospects for rehabilitation. Any sentence I impose must specifically deter you from re-offending.

53 You have served 146 days, not including today, of pre-sentence detention in relation to this matter since your remand in March 2017. Is that correct, that figure?

55 HIS HONOUR: Thank you, counsel. I will declare that as PSD in a minute. As already outlined, you spent 96 days in custody between 27 August 2016 and 29 November 2016, which has not been applied to any sentence of imprisonment. You spent that time in custody for offences which are unrelated to the riot.

56 Your counsel submitted that I should exercise a Renzella discretion[7] or otherwise apply the principle of totality in respect of that time. That is, apply it to your credit, not necessarily in a strict mathematical sense, but as appropriate to your circumstances. That was the submission made to me. Your counsel submits that I should do so because while the sentencing Magistrate was aware of this time, her Honour did not formally take it into account as part of your sentence when she imposed a CCO.

57 The Court's discretion to take pre-sentence detention into account is broad and based on a need to avoid injustice to the offender, and this account should be made at the first opportunity and not by a later sentencing court.[8] The prosecution does not take issue with the submission made by your counsel. I accept that the 96 days you spent in custody between August and November 2016 has not been reckoned as a period already served under any sentence of imprisonment. I will take this period into account in a general way.

58 Further, as I noted on 31 July 2015, you received subsequent sentences, including 12 months' imprisonment for various offences. I must make allowance for the fact that you have lost the opportunity of concurrency and totality involving that sentence and the sentence which I am about to impose. In that sense the principle of totality applies where I must give some consideration to the overall sentence that would have been imposed upon you had you been sentenced for all of these matters at the that time.[9]

59 I turn to a submission made in relation to the onerous conditions in which you served a period in custody. In the aftermath of the riot conditions for prisoners were more restrictive with lockdown times of up to 23 hours per day. You were subject to these more restrictive conditions from July 2015 until January 2016. During this period you were in lockdown for 22 to 23 hours a day. From September 2015 you were placed on an intermediate regime, which was a restrictive regime limiting time out of your cell and your ability to mix with other prisoners. This placement was determined appropriate because of your alleged participation in the riot.

60 I accept that your experience of more restrictive conditions during this period has been onerous and I take that into account in mitigation to an extent. While this time was spent under another sentence, as I have said above, I take that period into account under the principle of totality. However, as I said in my sentence for your co-offender, Luca, any benefit must be moderated by the fact that you contributed to the circumstances that resulted in restrictive conditions. Ultimately, the credit you get for this is a question of degree. [10]

61 During your subsequent remand periods you have not been subject to the same restrictive conditions. You have worked in the prison kitchen and more recently, studied. You are currently undertaking a certificate qualification in horticulture, four days per week. You are on the wait list to complete welding and traffic management courses and a drug rehabilitation course focused on ice. All of the above matters were confirmed in an affidavit of Assistant Commissioner Money of Corrections Victoria, which was tendered and exhibited on your plea.

62 Parity is a relevant matter. A number of offenders have been sentenced for their roles in this riot. I must make due allowance for the respective criminality of each offender for their differing antecedents, personal circumstances and mitigating circumstances. I have already talked about your relative culpability with Luca and Davis, the two co-offenders who received attention on the plea. I do not intend to refer to those matters again and I do not intend to refer to every matter personal to each of you. However, by way of example, while your role in the offending was less significant than Luca's role, your criminal history is more significant and Luca's prospects of rehabilitation were better than yours.

63 Where your co-offender is already serving a sentence, like Luca, I must also consider each component of the sentence imposed including the extra period of imprisonment which he will be required to serve as a result of the riot.[11]

64 I have already found that your offending was more significant than that of Davis. I would add further, that while Davis had a criminal history which commenced in 2011, your history is more substantial, with multiple prior custodial and detention sentences.

66 On the charge of riot you are convicted and I sentence you to 22 months' imprisonment.

67 I set a non-parole period of 11 months. That is the minimum period which you will be required to serve before you become eligible for parole.

68 I declare that 146 days of this sentence is reckoned as having already been served and I direct that this is entered into the records of the Court.

69 Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have sentenced you to 40 months' imprisonment with a non-parole period of 22 months.

70 You may be seated, thanks, Mr Boreham. Is there anything else, counsel?

72 HIS HONOUR: If the prisoner could be taken away, please.

[1] Director of Public Prosecutions v Johnathon Luca [2016] VCC 1573 ('Luca').

[2] R v Caird (1970) 54 Cr App Rep 499, 505-508; R v McCormack & Ors [1981] VicRp 11; [1981] VR 104, 108-109; R v Sari [2008] VSCA 137 [62]-[65].

[3] R v McCormack & Ors [1981] VicRp 11; [1981] VR 104, 109.

[4] De Castres v The Queen; Kent v The Queen [2011] VSCA 377 [1] [10] [26]-[36].

[5] [2017] VCC 747 ('Davis').

[6] R v Mills [1998] 4 VR 235, 242 (Batt JA).

[7] R v Renzella [1997] 2 VR 88 ('Renzella').

[8] Ibid 97-98. See also Wheldon v The Queen [2011] VSCA 83; (2011) 31 VR 297 ('Wheldon').

[9] R v Renzella [1997] 2 VR 88; El-Waly v The Queen (2012) 46 VR 656 , 673-674 [107] - [114].

[10] R v Stevens [2009] VSCA 81 [18]-[24].

[11] See Postiglione v The Queen [1997] HCA 26; (1997) 145 ALR 408, 441.