IN THE COUNTY COURT OF VICTORIA
Revised
(Not) Restricted
Suitable for Publication
AT MELBOURNE
CRIMINAL JURISDICTION
CR 13-01954
CR 13-01754
CR 13-01754
CR 13-01754
CR 13-01871
DIRECTOR OF PUBLIC PROSECUTIONS
v
ANDREW FOSTER
SAM LISZCZAK
JOSEPH HAEBICH
WILLIAM SMITH
PATRICK MEIZYS
--JUDGE:
HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:
Melbourne
DATE OF HEARING:
17 February 2014
DATE OF SENTENCE:
17 February 2014
CASE MAY BE CITED AS:
DPP v Foster&Ors
MEDIUM NEUTRAL CITATION: [2014] VCC
REASONS FOR SENTENCE
--Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
--APPEARANCES:
Counsel
For the Director of Public
Prosecutions
Ms L. Featonby
For Accused Foster
For Accused Liszczak and
Meizys
For Accused Haebich
For Accused Smith
Mr D. Gibson
Ms M. Walker
Ms M. Nirvana
Ms M. Casey
VICTORIAN GOVERNMENT REPORTING SERVICE
565 Lonsdale Street, Melbourne - Telephone 9603 2401
Solicitors
HIS HONOUR:
1
Sam Liszczak and Andrew Foster, each of you pleaded guilty to an indictment
which alleged that you had riotously assembled together on 12 August 2012,
intentionally damaged property of Corrections Victoria, that you recklessly
caused injury to each of three prison officers on that occasion.
2
The prosecution tendered a summary of the relevant events with which it
opened the plea, and that document was exhibited, as was a series of
photographs relating to the incident.
I append those documents to this
sentence and they will be retained on the court file for reference.
3
I will briefly state the circumstances of the offences.
4
Each of you were in custody at the Melbourne Remand Centre, which is on
the outskirts of Melbourne and is a maximum security facility for remand
prisoners in Victoria. Each of you were on remand at the Melbourne Remand
Centre and housed either in the Attwood or Albion Units. The units share a
walking track known as A Yard.
5
On 12 August 2012, at about 1 pm, you were all in the A Yard with other
remand prisoners. Following a plan to which you had all agreed, you scaled a
fence, which was a taught wire fence which surrounds the internal perimeter
of the prison, and found yourselves in an open air corridor bounded by the
external solid security five metre wall. This corridor is called a Sterile Zone
and is a prohibited zone for prisoners and runs the entire circumference of the
MRC. It has a surface made of rocks and stones. This zone contains closedcircuit TV cameras and sensors which are monitored. An alarm was activated
by the fence, and so officers in the central control room were aware of your
presence in the Sterile Zone almost immediately.
6
The zone is subdivided into other zones. An alarm was activated for the
relevant one in which you found yourself. Within a few minutes, at six past
.TC:GD
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one pm, a code for lockdown of prisoners in the Attwood and Albion Units was
called and, shortly after, for the entire prison. Other prisoners in those units
remained in A Yard and were refusing to go into lockdown after Code Grey,
being the code for a riot, was called for that yard. This was resolved relatively
quickly and by 1.20pm those prisoners started moving into their units. The
lockdown was completed by 1.40 pm.
By 1.34 pm the police were in
attendance.
7
When you were first approached by police officers, you became abusive but
not threatening. Before the Code Grey for a riot in the A yard has sounded,
you had thrown rocks at the Emergency Response Group and the Security
and Emergency Services Group vehicles near the administration buildings.
After the other prisoners were secured, prison officers shadowed and
monitored you in the Sterile Zone for about 90 minutes. During that time you
threw rocks at them and challenged them to come into the zone. You walked
around the perimeter of the prison in this zone and, as you walked, you
smashed windows with rocks, damaged equipment, infrared sensors, CCTV
cameras, junction boxes, intercom panels, using rocks and metal posts you
had pulled out of the ground.
8
The damage to the cameras meant that there were blind spots in the security
set-up and you attempted to open a door into the main gatehouse. By this
time it is more than likely that you had been identified. When officers spoke to
you, endeavouring to reason with you, asking you to reflect about what you
were doing, you responded with aggression, throwing rocks and using foul
language.
One officer was hit on his left shoulder blade, without injury,
another was also hit on the back while retreating to avoid being hit by rocks.
That was thrown by you, Andrew Foster, and it caused a ten centimetre long
abrasion which required dressing but not sutures. Another officer was hit by a
rock on his right side rib area, resulting in pain and significant bruising.
9
.TC:GD
After the lockdown of A Yard, one of you threw a rock through a window in
2
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Attwood Unit, which smashed glass, and a fragment of which lodged in a
prison officer's eye. The inside of his eyelid was cut and, fortunately, did not
do any other damage.
10
The two emergency vehicles had broken windscreens in one and panel
damage to both. Windows were smashed in the access control post at the
gatehouse, the internal administrative building, Attwood, Bellbridge, Chilwell,
Cambridge and Deakin Units and the reception building.
11
At 2 pm, after briefing between staff and Security Emergency Response
personnel, a number of officers donned full riot gear in expectation that
chemical agents were to be deployed. Each of you tied T-shirts and other
garments around your head and face. I am not of the view that this was to
hide your identities, which by that time was known to the authorities. As far as
any other purpose is concerned, it was done in anticipation of what would
accompany the entry of security teams into the Sterile Zone.
12
At 2.53 pm security teams finally entered, surrounded you and arrested you.
By 3.13 all of you had been restrained and handcuffed and chemical agents
had to be used, as you would not go to the ground.
13
During this event, large groups of visitors were evacuated from the Visitors
Centre. Other prisoners going about their day were restricted and locked into
their cells.
14
The metal poles and edged weapons and rocks could have caused lifethreatening injuries.
All of you had abrasions to knees and arms caused
during your arrest on the rock surface of the zone. Officers were fearful for
their safety and that of others, and officers from the Melbourne Assessment
Prison, Barwon and Loddon were sent to the MRC to assist in the emergency
response.
15
.TC:GD
The MRC remained in lockdown for several days as damage was assessed
3
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and temporary repairs done to the security perimeter systems. The cost of
the repair works and response, including additional staffing, was in excess of
$320,000. Each of you declined to be interviewed and later three sharpened
wooden instruments were later recovered from the Sterile Zone.
16
Riot is an offence against the peace. Each of you intended to gather together
and assist one another by force, if necessary, in pursuit of a common
purpose, with a will to disrupt the workings of a prison, cause disruption
generally, set up a confrontation and cause a response by the authorities, as
well as do damage to the infrastructure of the prison and the prison's orderly
management.
17
The maximum sentence for riot is ten years, and by this the Parliament
indicates its gravity.
18
Each of you I consider equally culpable for pursuing a common and unlawful
purpose with the use of violence so as to cause alarm by the weight of your
number. The threat of a riot lies in the power of numbers, and in this context I
intend to focus on you as a group rather than as individual participants,
although individual acts may aggravate or mitigate the offence.
19
In evaluating the seriousness of the offence, I have considered the level of
violence used. I accept that you did not target individual officers. The level of
injury was of a low order, although still involving pain, bruising and discomfort.
It was fortunate you did not injure someone more seriously. The rocks which
you threw could have caused significant or very serious injury. The potential
for danger to persons was significant.
20
Violent attacks on men and women who are going about their duties is totally
unacceptable and must be denounced as behaviour which cannot be tolerated
and which will be met with punishment. The potential for an escalation of
violence in an environment like the prison, created by such a confrontational
incident is potentially very serious. Other prisoners were encouraging you in
.TC:GD
4
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your endeavours and it took careful management to dissuade them and have
them safely into their units.
21
The actual damage to property was significant and costly, a burden ultimately
borne by the community. The context of such behaviour taking place in a
prison environment calls for general deterrence to be a major consideration in
the sentence.
Other prisoners and those whose lifestyles are likely to
encompass potential incarceration must be deterred from such behaviour
within the environment of a prison.
22
From time to time prisoners may have frustrations, unmet demands and
difficult predicaments to deal with. Whether legitimate or not, such issues
cannot seek resolution by mob intimidation and violence.
I was told that
some, or all of you, ha foundd yourself with shared complaints and frustrations
which went from the anger and disappointment of finding yourselves in
detention to some grievances about how you had been dealt with.
23
The starting point of such grievance is to note that you were on remand for
criminal offences for which you were responsible. It is true that imprisonment
does not entitle anyone to mistreat or abuse prisoners, but even in a tense
and difficult environment like a prison, such grievances cannot provide an
excuse for violence. In any event, though I consider this behaviour to have
been serious and costly, I am not of the view that this is the most serious type
of riot. It falls in the middle rank of severity.
24
Before dealing with each of your circumstances individually, I take your plea of
guilty into account in each of your cases and I will discount your sentence for
that reason.
I accept that all of your pleas were offered at the earliest
opportunity and note that in terms of the timeframe, that meant some 13 or 14
months after the offences were committed and offered at the committal
mention.
25
.TC:GD
I accept that the plea in each case is useful in that it has avoided long trials in
5
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these matters, which have saved costs and inconvenience. I accept that in all
of your cases the plea is accompanied by regret at your actions.
26
Remorse is more difficult to assess. Your blatantly cavalier and nonchalant
attitude at the plea could easily be construed as insolence and lack of
remorse.
However, I consider that display merely youthful and immature
bravado.
I cannot say with any measure of confidence that you are not
remorseful or that you are, but I cannot exclude it. I consider your youth to be
of more importance than any such difficult determination. I accept the plea is
offered in a genuine acceptance of responsibility and to facilitate the course of
justice, which I have indicated will result in a discount in your sentence.
27
Andrew
Foster,
you
are
20
years
old
and
you
were
19 at the time of the offence. You were born in West Midlands in England, the
oldest of three. You came to Australia with your family in 2007, but you had
experienced behavioural issues from a young age.
Your family settled in
Narre Warren, which would have been a significant dislocation of environment
for you.
You wanted to remain in England, and your response to this
challenge was to leave the family only three months or so after you arrival,
aged 14.
28
At that early age you found yourself on the streets and your first court
appearance a year after your arrival was in 2008 for dishonesty offences for
which you were placed on probation.
29
By 2009, Youth Justice Orders were made for a large number of offences
involving violence, driving , dishonesty and drugs. A protection application
issued in mid 2009, but by October 2009 further criminal charges and
breaches of the probation and youth and supervision orders were dealt with
by way of youth attendance and further probation and supervision orders.
30
In December 2009 further criminal dishonesty charges in breach of those
orders were dealt with by way of Youth Justice Centre detention for eight
.TC:GD
6
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months. In 2010, on three occasions you appeared in the Children's Court for
criminal damage and violent offences including robbery and causing injury
intentionally.
You were detained for ten months.
Again in 2011, the
Children's Court convicted you of armed robbery, causing injury intentionally
and other theft offences and the court sentenced you to a period of detention
concurrent with the 15 months on the Youth Justice Centre Order for armed
robbery. In December of 2011, the Children's Court convicted and sentenced
you to a further three months detention for burglary and theft and reckless
conduct endangering serious injury.
31
This past behaviour has meant that you are effectively totally estranged from
your family. You were diagnosed with ADHD at the age of eight, and by the
age of ten you were experimenting with cannabis, which then developed into
poly substance abuse.
32
Relevant post offence matters were properly raised before me. At the time of
the riot you were on remand and had served 154 days for a series of hold-ups
at service stations. A month after the riot, in September 2012, you were
sentenced to three years in a Youth Justice Centre. You went to Malmsbury
and
there
did
Year 10 schooling, did some carpentry and got a bobcat or forklift licence.
33
In May 2013 you were paroled. In that period you attended Youth Support
and Advocacy Services for counselling and training. You attended all your
weekly
appointments
connections.
and
those
support
agencies
became
reliable
You were not living at home and required an operation to
remove a tumour from your chest.
34
Understandably, and unfortunately, thereafter you started back on ice and
began re-offending. You held up a petrol station. On 12 August 2013 you
were arrested and remanded to the Melbourne Assessment Prison, and I am
told parole has not been breached but further determination awaits the
.TC:GD
7
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sentence. You have been at Port Phillip Prison for the last two months and
have not worked or done courses because you are not allowed to hold tools or
implements. You continue to have no contact with your parents, and I was
informed your sentence is due to expire in April of 2015. You have not been
subject to lockdown. At some point, whilst at the Melbourne Assessment
Prison, you managed to be the head baker there.
35
The period after May 2013, when you were paroled, shows that you can take
rehabilitative opportunities if you can stay away from drugs and have
adequate supports. However, even for a young person, your prospects of
rehabilitation must be guarded.
Despite this, the court must continue to
provide some hope and foster expectations of reclamation. In each case, you
are young and this worthy aim is important in this sentence.
36
A psychologist's report was tendered on your behalf.
Mr Ball, a forensic
psychologist, noted the risk of you developing antisocial personality disorder.
Your release into the community requires support, structured treatment,
vocational assistance and supervision, which parole may provide. The report
was written around the time of the offences and identified in you very poor
judgment, immature, defiant , antisocial and oppositional attitudes, aggressive
impulsivity and a failure to learn from previous mistakes.
37
You have spent all but four months of the last two years since April 2012 in
custody, and I consider that the risk of institutionalisation is a matter which
raises its very unpleasant head in your case. It was put on your behalf that I
should consider the utilitarian benefit of your plea, and I accept that, as I have
said.
38
Your remorse is difficult to assess, but I accept the plea should receive a
discount. I accept that the relative delay in this matter may have affected
certain dispositions, not to your benefit, by way of concurrency, and I consider
that I should look at the totality issue as an important factor, not just relating to
.TC:GD
8
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your current situation, but the period which you have now been detained in
custody overall.
39
The antisocial features in your personality must be carefully balanced in a
sentence which seeks to deter you, as well as others likeminded, and
hopefully will not inevitably lead to institutionalisation.
40
There is an added aspect in your case, and that is the prospect of deportation
being very real. Much will depend on the impact of the sentence and the
determination, but certainly I take this aspect of the prospect of deportation
making imprisonment more burdensome in your case into account.
This
would be your first sentence in an adult prison otherwise.
41
Sam Liszczak, you are 20 years old, 19 at the time of the offences. You were
raised by your young mother until you were eight and you were taken into
State care because you were being subjected to violence. You have not seen
your mother since and you are not in frequent contact with your father. You
first met your grandmother in 2011, and though she and her partner were
here at the time of the plea, they were unable to be here today.
42
You have little schooling and were expelled from school several times. You
worked as a panel beater and spray painter in your teens for short periods,
but you do not have a curriculum of work.
43
Your first appearance in the Children's Court is when aged 12 in 2005
continuing to your last prior in June 2012.
During these years you were
ordered to enter bonds, probation, supervision orders and Youth Justice
Orders, and then from 2010 you have been convicted and ordered to be
detained for various periods, the longest being 24 months in 2011 for armed
robbery. You have priors for dishonesty, intentionally damage property, threat
to inflict injury, armed robbery, assault with a weapon. You were released
from detention in March 2012 but returned only a month later. It was during
this period of remand that these offences occurred.
.TC:GD
9
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44
In September 2012 you received 24 months aggregate sentence with a nonparole period of 12 months for a car theft and driving offences involving a
police pursuit, setting cars alight and burglary. As a result of those offences
and your remand on them, as I understand it, the time owing to the Youth
Parole Board was transferred to the Adult Parole Board, a period of some nine
months. You began to serve these as of April 2012, and the September
sentence was made cumulative upon it, making a total effective sentence as
of September 2012 of two years and nine months and some days with a nonparole period of 12 months, which has expired as of today.
45
Submission was made that in that sentence only six days by way of presentence detention was taken into account, that in fact the April to August
period was not accounted for and constitutes, it was said, "dead time", as it is
called, some four and a half months. I was asked to take that period into
account for purposes of my sentence and the totality principle and I do so.
46
Since August 2012 you have been in various units, Acacia, Exford, Charlotte,
Banksia, Melaleuca, within the prison system and remain in 23 hour lockdown.
Your sentence expires in May 2015 with your parole eligibility having expired
in August of last year.
47
Whilst at Barwon, and this goes to your credit, you have undergone a
business management course despite the restrictive conditions. The Parole
Board, in January and May 2013, were considering your reports and progress,
but in June 2013 the summons for this matter issued and a decision was
deferred.
48
A report was tendered from Associate Professor Andrew Carroll, a consultant
forensic psychiatrist, consultant to Forensicare and a senior lecturer in
forensic psychiatry at Monash University. He found your mood to be one of
frustration and despair and disturbance of sleep.
He found no cognitive
deficits or depression as such, but described the effects of your isolation in
.TC:GD
10
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stark terms. You engage in constant rumination about your past and future
which sometimes turns vengeful after hours in your cell alone. You spend an
hour daily folding your few clothes and take up to four showers a day some
weeks and experience panic attacks, with shortness of breath, which you
have learnt to manage. This effect, Professor Carroll noted, in a young man
who was alert and above average intelligence. You told him, "I was normal
before I got in here. This isn't helping anyone."
49
You showed concern about your mental health in prolonged detention in those
circumstances and you expressed anxiety about moving into the community
directly from a management regime. You expressed a desire to move away
from past behaviour and had some insight into your impulsivity and
aggression and repeated that in Barwon you had seen a professional about
anger management.
Your grandmother and cousin have visited you
whenever they have been able. You admitted to Professor Carroll that you
and the others had planned your activities the day before and the reason for
this behaviour was "that the screws were being smart."
50
You went into a 23 lockdown regime in August 2012 up until about two
months ago. You used the free hour to be walked by officers outside your cell
while handcuffed. Two months or so ago you went to a 22 hour regime with
run-outs twice a day, which you have been allowed, allowing you some
contact with other prisoners. For the rest of the day you are confined to your
cell and take meals alone, handed to you through a trap in the door.
51
The course you completed was done through reading materials used in
private study. In the past you have slept during the day, doing so for several
months, or pacing around your small cell. Phone calls are few because they
tend to depress you, and you have ceased meetings with the Major Offenders
Unit for fear of losing your temper and jeopardising the small gains you have
made in recent months.
.TC:GD
11
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52
Professor Carroll in his report has noted the matters which give rise to serious
concerns about such prolonged periods of what is, in effect, solitary
confinement.
These matters are relevant to you but, in my view, are of
concern for each of the prisoners who are in such regimes for extended
periods.
53
You have now been subject to such confinement for nearly 18 months. This
has occurred during a developmentally very significant period of your life. late
adolescence and early childhood, a period during which neurobiologically and
psychologically you are not fully mature and hence vulnerable. The effect of
this period is likely to have a lasting impact on your view of yourself and
society around you. You have experienced episodes of clinical depression
and lost all interest and motivation for months at a time.
54
Though it is difficult to see what meaningful activity one could undertake, the
impact of such seclusion is highlighted by the small beneficial effect of brief
interludes of access to others outside in recent months. It is remarkable that
in a situation of isolation and extreme psychosocial impoverishment coupled
with despair and frustration, that you have nevertheless expressed some prosocial hopes for yourself. This, I have little doubt, comes from your internal
resources and is no way referable to any positive effect that this regime has
enforced.
55
Professor Carroll is of the view that release into the community directly in the
absence of formal supports would potentially be catastrophic, throwing you
back into the clutches of drug and criminal behaviour and away from the prosocial path of employment, no drug use, of which you are capable.
56
I intend to take into account the nature of your incarceration in determining an
appropriate sentence. By taking into account, I mean that I will reduce the
length of the sentence because of the onerous conditions which, in my view,
are substantially more burdensome than normal reclusion.
.TC:GD
12
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57
I cannot exclude that you are likely to remain in a management unit for a
period after the sentence I impose. To assign a beneficial or mitigatory effect
or more specific value to a future situation is difficult, but I do take it into
account.
58
The letter of the senior assistant manager of the Major Offenders Unit
tendered on the plea leaves me with little confidence that such so-called
‘management’ will not be implemented in the future to any of you, particularly
you, Mr Liszczak. It was said that your long-term management lockdown was
due to "considerations of good order." He referred in this email letter dated
January 2014, to :
"Preliminary request to begin to look at these individuals still in long-term
management. Whilst it is difficult to provide an exact time as to which
they might be cleared for long-term management, a better understanding
will be known once we have essentially looked at individual available
options for each prisoner based on safety and access to programs."
59
Whilst not passing judgment on correctional practises or the language used in
such communiques, the upshot of this is that I consider that both the past
experience and the likely continuation as necessarily affecting the sentence,
necessitating a reduction, reflecting the fact that those periods have not been
spent in more conventional prison conditions but in situations which I consider
of great deprivation for periods of time which are not only difficult to accept,
but which could be potentially harmful, particularly to prisoners' mental health.
60
In the context of a period of time in which our community is asking itself
difficult questions about the management of mental health in people who go
on to commit abominable offences, it is difficult to see how this management
in young people aged 19 or so can have any long-term benefit either to safety
or security. It is so easy to imagine that such periods of imprisonment may
well lead to increase in instances of mental illness.
61
.TC:GD
In this context a report of the Ombudsman was tendered, which dealt with an
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DPP v Foster&Ors
investigation into children being transferred from the Youth Justice System to
an adult system and which made findings about the use of this type of
imprisonment on the young. While it is clear that there the Ombudsman was
dealing with children and each of you are above that age, you are still youthful
offenders and, to my mind, many of the considerations are relevant to you.
Many of the findings are supportive of my conclusion that I should take your
periods in lock-down into weighty account.
62
It is not my role in this sentence to partake or comment on the use of
management units for long periods, particularly where the offenders are
young. But I have little doubt that the strong words of the Ombudsman in that
report should sound serious warning bells for those who administer
Corrections about the prolonged use of such placement with its potential for
exacerbating mental illness and the proclivity for a life of crime. In young lives
blighted too often by neglect, abandonment and abuse, drug use and mental
illness, the worthy need and obligation to attempt to rehabilitate young people
is damaged substantially by such long term confinement. I can see it serving
no worthy purpose except to punish and degrade, an intent which after a
period of time borders on the cruel and inhumane.
63
Our criminal justice system must be better than that. Our Court of Appeal in
Tognolini and other cases has recognised in re-sentencing that onerous
conditions of incarcerations necessitated a material reduction in the nonparole period and I take this statement of principle as binding on me and I also
take into consideration declarations of this court where such principles have
been applied such as in DPP v. Tiba & Ors and DPP v. Thompson.
64
The upshot of the considerations that I've outlined in relation to both of you
means that I will impose what today may appear to be lenient sentences but
which I consider to be appropriate in the circumstances for each of you.
65
.TC:AEM
As to the Crown submission as to sentence, I should make clear that at this
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time that I have regard to the High Court decision in Barbaro and Zirilli and I
propose to disregard the submission as to the appropriate sentencing range
made by the learned prosecutor on behalf of the prosecution at the plea
hearing.
66
The effect of the sentences will have on you may differ in relation to the time
that you are currently serving, but I have endeavoured to treat you equally in
relation to these offences. On riot, each of you is convicted and sentenced to
six months' imprisonment;
on criminal damage, you are convicted and
sentenced to six months' imprisonment concurrent on Count 1; on recklessly
cause injury, you are convicted and sentenced to six months with one month
cumulative on Counts on and two and on each other. That makes a total
effective sentence of seven months.
67
In each of your cases, but for your plea, your sentence would have been of 9
months. I need make no order as to a non-parole period. I order that four
months of that sentence be cumulative upon sentences currently being
served.
68
I have signed the orders for disposals, I do not believe I have any other orders
that I need to make.
69
MS FEATONBY: No, Your Honour.
70
MR GIBSON: No, Your Honour.
71
HIS HONOUR: Thank you for behaving in court, you can leave.
72
MS FEATONBY: Your Honour, can I just double check something? There
were three charges of recklessly cause injury and you imposed six months.
73
HIS HONOUR: On each.
74
MS FEATONBY: On each, with one month cumulative on each and one and
two, is that a total effective of nine?
.TC:AEM
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75
HIS HONOUR: Sorry, I had meant to make one of those cumulative and the
others wholly concurrent. I will have a look at the indictment. I will make the
sentence on Charge 3, I will order that one month out of that sentence be
cumulative upon the other sentences.
76
MS FEATONBY: As Your Honour pleases.
77
HIS HONOUR: I am not sure what the situation with the others will be, I
understand that there has been some difficulty as among some of them this
morning, as to whether all three will be able to be brought up in one go, I think
it is doubtful, so I will deal with the next two or one, if needs be. I understand
Mr Meizys will be by himself.
78
MS WALKER: Yes, Your Honour and I understand that he will be last. May I
be excused from the Bar table temporarily and I'll come back for that?
79
HIS HONOUR: Yes. Thank you.
80
MR GIBSON: If I may be excused, Your Honour?
81
HIS HONOUR: Yes, certainly. ……………………………………………………..
82
William Smith, you are 20 years old and you were born in New Zealand. You
were 19 at the time of the offence. You came to Australia with your family in
2006 when you were 13. At age 16, you had your first appearance in the
Children's Court in 2009 till 2011, you appeared in the Children's Court on a
number of occasions when you were dealt with for serious violence and
dishonesty offences. You received periods of detention. In December 2011,
when aged 18, you were gaoled in the adult system for two years with a nonparole period of 12 months for armed robbery and since June 2011, you have
spent one month in the community. Though you had been paroled in June
2012, you were back in custody a month later for new offending and your
parole was cancelled.
After these offences you were transferred to Port
Phillip and you were continuously housed in a Charlotte Management Unit for
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over 16 months.
83
In 2013, you were again sentenced for other offences and your non-parole
period expired in November 2013. Your current sentences expire in August
2014. In December 2013, you were transferred to the Borrowdale Unit, an
intermediate unit, but you are still in lock-down for 22 hours there.
At
Charlotte, you had a lack of access to programs and you were on a handcuff
regime. You have, however, accessed an Occupational Health And Safety
Certificate course.
84
Given this incarceration, I intend to apply the principles I have mentioned
before to reduce your sentence.
85
As part of your plea material, I was taken to a 2011 report of clinical neuropsychologist, Jane Loftus, who assessed you as an 18 year old. You have a
history of drug and alcohol abuse. You may have an acquired brain injury due
to numerous fights. At that time your family, who were in Melbourne, were
supportive and had visited you regularly. You had left school at Year 10 and
had never had paid employment. She found you have difficulty with anger
control and are of low average intelligence and immature.
86
In 2013, Carla Lechner, an experienced clinical and forensic psychologist,
provided an assessment of you for the court.
She commented on your
incarceration in the spine of Charlotte Unit and with no smokes, no television,
no power in the cells, fixed radio transmission and food delivered through a
slot with handcuff regime outside your cell. She found you depressed, directly
related to your isolation, lack of social contact and lack of occupation. Your
depression was made worse by the prospect of deportation back to New
Zealand at the end of your sentence. The return to New Zealand without
family and little else in place does not augur well for your future or your
prospects of rehabilitation. Your current major depression contributes to selfdefeating behaviours of which these offences are probably good examples.
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87
Ms Lechner concludes you are a high risk of becoming institutionalised. For a
man of 20 years of age, that that risk should be so high is extraordinary. I will
take the management aspect of your incarceration and your likely deportation
into account when fixing what I consider to be an appropriate but lenient
sentence.
It is my hope you will not go from a lock-down regime to a
detention centre and then to New Zealand without any access to counselling
for drugs, alcohol, anger management, vocational social skills training as well
as even the most basic educational opportunities and each of those seem
currently remote in your case. There is no pre-sentence detention in this
matter as far as you are concerned and I will take your plea, as I have said,
into account.
88
Despite Verdins' principles being briefly referred to in your plea, but not
expanded upon in any fashion, I, by reference to the reports I have received,
consider that Verdins principles do not apply here.
But I have taken the
significant matters contained in those reports into account in your sentence.
Although your moral culpability is not reduced by these factors predating the
offence, I consider them to be relevant in understanding your participation in
the offending…………………………………………………………………………..
89
Joseph Haebich, you are 22 years old and you were 20 at the time of the
offences. Your father passed away when you were 12 and up until that time,
you had experienced a deal of dislocation and instability in your family life.
Though
you
were
diagnosed
with
ADHD
and
were
prescribed
dexamphetamine, you ceased that medication in your early teens. By age 14,
you appeared a number of times in the Children's Court and you were placed
on a series of probation orders for dishonesty, driving and violence offences.
At 16, you were first given Youth Detention for the same type of offences and
at 17 you again went into detention. During this period, when you were not in
detention, you fathered a daughter with whom you have little contact.
90
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You found some work bricklaying and carpentry, but continued through 2008
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DPP v Foster&Ors
and 2009 to be detained in Youth Justice Centres mainly for driving and
burglary and theft offences. However, in 2010 aged 18, you were imprisoned
by the Magistrates' Court, in January and June 2010, and then in January and
December 2001, to short periods of imprisonment. By the time of May 2012,
you were on remand and you had gone back to using Ice. You have been
prescribed Avanza to stabilise mood and to sleep.
91
In early August 2012, you were sentenced in the Magistrates' Court to 12
months, with six months minimum. In October 2012, after these offences, you
were sentenced for other matters to 18 months with a non-parole period of ten
months. April 2014 is the expected end of that current sentence.
92
Since these offences you have been in management lock-down for 23 hours
per day. There is no pre-sentence detention to be declared. It was submitted
it was likely you are to remain in a management unit until this sentence
expires.
93
The matters I have raised as to the others who have been in lock-down for
these long periods and the comments that I made in the sentence which I
recited this morning about that style of management for young prisoners in
particular, of which you are one, I will not repeat but are equally applicable in
your case. It is clear from this poor history that you have spent a considerable
part of your life, since aged 18, in prison and I am mindful of the view of the
risk of institutionalisation in someone still young with the added burden of long
months in lock-down and the need to consider the totality of the sentence and
its impact.
94
There must be some allowance made for the delay in this case and I have
taken such aspect into account when making my determination. None of it is
due to the two of you. In my view, in whatever time was taken up and for
whatever reason, there was delay in its finalisation which has impacted on the
prisoners by way of their detention and by way of the interplay of dispositions
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DPP v Foster&Ors
which may have been to their benefit had this matter been before a court and
determined before today. Although it may have had a more significant impact
if the time delay had been accompanied by efforts at rehabilitation, what has
followed for almost each of you, in my view, inclines me to take the delay as a
mitigating factor.
95
As to issues of double jeopardy, I expressed my view during the plea and,
although I consider that the charge relating to criminal damage can be viewed
as part and parcel of the group criminality which proceeded at the heart of the
rioters' behaviour, in my view the injury procured to the prison officers, in the
context of that behaviour, falls outside that scope and requires small
cumulation in recognition of those instances of reckless behaviour. These
comments about delay and particularly about double jeopardy are equally
applicable to the sentences of Foster and Liszczak that I handed down this
morning.
96
As to the Crown submission as to sentence, I make clear at this time that
having regard to the High Court decision of Barbaro and Zirilli, I propose to
disregard the submission as to the appropriate sentencing range made by the
learned prosecutor on behalf of the prosecution at the plea hearing.
97
The effect which these sentences will have on you may differ because of your
current imprisonment periods, but I have endeavoured to treat you equally in
relation to the offences.
98
For Riot, you are convicted and sentenced to six months' imprisonment; for
criminal damage, you are convicted and sentenced to six months'
imprisonment concurrent with Count 1. On recklessly cause injury on Count
3, you are convicted and sentenced to six months' imprisonment. I order that
one month of that charge be cumulative on each of the other charges. And
On recklessly cause injury Charges 4 and 5, I order six months concurrent.
That makes a total effective sentence of seven months. I order that four of
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DPP v Foster&Ors
those months be cumulative on your current sentences.
99
But for your plea, your sentences would have been of nine months.
100
I have signed disposal orders in each case.
101
MS CASEY: As Your Honour pleases.
102
Patrick Meizys, you pleaded guilty an indictment which alleged that you had
riotously assembled together with others on 12 August 2012 and intentionally
damaged property of Corrections Victoria, and that you recklessly caused
injury to each of three prison officers on that occasion.
103
The prosecution tendered a summary of the relevant events with which it
opened the plea. That document and a series of photographs relating to the
incident will be appended to the sentence and will be retained for the court file
for future reference…………………………………………………………………
104
Before dealing with your circumstances individually, Mr Meizys, I take your
plea of guilty into account. I will discount your sentence for that reason. I
accept that your plea was offered at the earliest opportunity and note that, in
terms of the timeframe, that meant 13 or 14 months after the offences at a
committal mention.
105
I accept that the plea in each case is useful in that it has avoided trials in
these matters which has saved costs and inconvenience. I accept that, in
your case, as in all the others, the plea is accompanied by regret at your
actions. Remorse is more difficult to assess. Your cavalier and nonchalant
attitude at the plea could easily be construed as insolence or a lack of
remorse. However, I consider that that display was youthful and immature
bravado. I cannot say with any measure of confidence that you are or are not
remorseful, so I cannot exclude it. I consider your youth to be of more
importance than any such difficult determination.
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106
I accept the plea is offered in a genuine acceptance of your responsibility and
to facilitate the course of justice which I have indicated will result in an
appropriate discount of your sentence.
107
You are 19 years old and you were 18 at the time of the offences. Your
mother passed away when you were two years old and thereafter you went
into the care of your maternal grandmother, who also unfortunately passed
away when you were 15. For eight months thereafter, you went to live with an
aunt in Queensland and then to another uncle and aunt's. Unfortunately, both
that uncle and another with whom you had contact, were both violent criminals
and you were surrounded by violence.
108
In your youth, you were diagnosed with ADHD but were never treated. At the
age of 16, you started to use cannabis, then Ice and Heroin and other drugs.
Apart from suffering panic attacks, you have a past history of explosive anger
and self-harm. You are currently in lock down for 20 or so hours per day, with
about two hours in the yard twice a day without contact with any other
prisoners.
109
You have described the riot to Dr Cidoni, an experienced consultant
psychiatrist, and you told him that that morning you had had an argument with
a prison officer and you felt threatened and derided by officers. You do not
have an anti-social personality disorder but the offence reflects vulnerability to
peer influence and aggression. Dr Cidoni says it was an act to project a
persona of being a criminal. This is tragic is one so young.
110
I have no doubt that bad example provided to you in your formative years was
unfortunately determinate of your criminal attitude. You are vulnerable to a
depressive condition and imprisonment has the likely effect of hardening your
attitude. When coupled with that, Dr Cidoni states "There is a lack of insight
into the impact of your behaviour and your assertion of a criminal persona." In
the context of this mental attitude Dr Cidoni mentions that he has concerns
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DPP v Foster&Ors
that you are in a management unit of high security.
111
I also received two letters on your behalf. One was dated November 2013
and documented your involvement in a drug and alcohol program offered at
Barwon Prison. You commenced individual counselling in July 2013 and you
have apparently agreed to continue attending as an on-going basis to develop
some self-awareness and take responsibility as well as develop pro-social
behaviours.
112
The second letter dated 20 November 2013, is from a Youth Outreach worker,
Suzanne Powell at Ballarat Community Health who confirms that you had
previously attended an Alcohol And Other Drug Youth Outreach Program at
Ballarat Community Health from November 2011 till May 2013, except for the
months you were incarcerated. During those occasions, you engaged well,
attended appointments and sought assistance when needed.
113
In my view, these past endeavours must be taken into account as some
demonstration of potential for rehabilitation which must not be crushed but
encouraged in you as a young offender.
114
You have a prior criminal history from age 17 and you have received various
Children's Court dispositions which includes parole, youth attendance and
youth supervision orders.
On 26 March 2012, you appeared before the
Magistrates' Court and received a Community-based Order, a partially
suspended sentence, you spend two months in custody and you were
released on 1 May 2012. Eight days later, you were arrested and remanded
for a robbery. In October 2012, after these offences were committed, you
received a total sentence of 18 months for the robbery and assorted
restoration of sentences and sentences for breaches of non-parole, a period
of some nine months was set with 190 days of pre-sentence detention.
115
On the day of these offences, you were transferred to the Exford Unit and in
February 2013, you were released but failed to attend your parole
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DPP v Foster&Ors
appointments. Parole was cancelled and you went back into custody in March
2013. In June 2013, a summons was issued for these offences and you have
been in custody since November 2013 in relation to them, when your
reclaimed parole expired.
116
You have pre-sentence detention of 88 days excluding today, which I will note
in the records of the court. Those days have been in a management regime
because of these offences. In fact, apart from the release on parole between
8 February 2013 and March 2013, you have been in a management regime
since 12 August, almost 17 months. I take this period into account when
considering your sentence.
117
I have made some comments this morning in relation to that imprisonment
regime. It applies to you as it did to all the other prisoners who have been
subject to it and I will not repeat it.
118
In relation to the submissions on sentence made by the Crown, I make clear
that, having regard to High Court authority of Barbaro and Zirilli, I propose to
disregard the submission as to appropriate sentencing range made by the
prosecutor on behalf of the Crown at the plea hearing.
119
The effect of the sentence on you may differ in relation to you from the others,
but I have endeavoured to treat you equally in relation to the offences.
120
For riot, you are convicted and sentenced to six months' imprisonment; on
criminal damage, you are convicted and sentenced to six months'
imprisonment concurrent with Count 1. On recklessly cause injury, the tree
counts, you are convicted and sentenced to six months with one month on
Count 3 to be served cumulatively, making a total effective sentence of seven
months. I will note in the records of the court that you have 88 days excluding
today of pre-sentence detention .
121
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But for your plea, I would have sentenced you to nine months' imprisonment.
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DPP v Foster&Ors
122
I have signed the disposal orders pertaining to this case and I do not believe
there are any other orders that I need to make.
123
MS FEATONBY: No, Your Honour.
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DPP v Foster&Ors