Director of Public Prosecutions (Cth) v Collins
[2024] VCC 1050
•12 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00996
| DIRECTOR OF PUBLIC PROSECUTIONS |
| (CTH) |
| v |
| KLYNTON COLLINS |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 June 2024 | |
DATE OF SENTENCE: | 12 July 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Collins | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1050 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentence
Catchwords: Guilty plea – use carriage service to procure a person believed to be under the age of 16 to engage in sexual activity – fail to comply with reporting obligations – relevant prior criminal history
Legislation Cited: Criminal Code (Cth); Sex Offenders Registration Act 2004 (Vic); Sentencing Act 1991 (Vic); Crimes Act 1914 (Cth); Crimes Act 1958 (Vic).
Cases Cited:The Queen v Gajjar (2008) 192 A Crim R 76; Meadows v R [2017] VSCA 290; Director of Public Prosecutions v SM(No 2) [2019] VSC 491; DPP v Beck [2021] VSCA 88; Worboyes v R (2021) 96 MVR 344; R v Verdins (2007) 16 VLR 269; Romero v The Queen (2011) 32 VR 486; The Queen v Pham (2015) 256 CLR 550; R v Taylor [2022] NSWCCA 256; Hurt and Delzotto v R (2024) 98 ALJR 485
Sentence: 4 years, 10 months’ imprisonment with a non-parole period of 2 years, 8 months’
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr M. Keks | Office of Public Prosecutions |
| For the Offender | Mr G. Cooper | Victoria Legal Aid |
HER HONOUR:
1Klynton Collins, you have pleaded guilty to one charge of failing to comply with reporting obligations contrary to s 46(1A) of the Sex Offenders Registration Act 2004 (Vic), the maximum penalty for which is five years’ imprisonment, and one charge of using a carriage service to procure a person believed to be under 16 years of age to engage in sexual activity contrary to subsection 474.26(1) of the Criminal Code (Cth), the maximum penalty for which is 15 years’ imprisonment.
2You were born in July 1986 and are now 37 years old. You have lived in Bendigo for most of your life and have two half-sisters and three half-brothers.
3You have admitted a prior criminal history.
Background to offending
4The background to your offending is as follows.
5On 21 January 2022, you were sentenced by the Bendigo Magistrates’ Court to a 24-month community correction order for the offence of encouraging a child under 16 to engage in, or be involved in, sexual activity contrary to s 49K of the Crimes Act 1958 (Vic). Due to this offending, you were declared a registrable offender under the provisions of the Sex Offenders Registration Act 2004 and your reporting obligations under that Act applied from that date for the rest of your life.
6On 2 February 2022, you participated in an annual interview as a registrable offender, during which you were required to report your personal details to police.
7On 9 February 2022, the police became concerned that you were contacting underaged females and arranged to engage with you covertly, using the online application, Facebook Messenger.
8On 18 February 2022, the police sent a 'friend request' to your Facebook account 'klynton.collins', purporting to be a 14-year-old girl named 'Lucy' who lived in Cranbourne, Victoria. You accepted the request that day and thereafter communicated with 'Lucy' on Facebook Messenger between 18 February to 25 February 2022, during which you engaged in sexually explicit conversations, offered enticements and ultimately arranged to meet 'Lucy' for sex at a Melbourne hotel.
Circumstances of Offending
9I turn now to the circumstances of your offending.
Charge 1 – Failure to comply with reporting obligations
10Charge 1 relates to your failure to comply with your reporting obligations between 28 January 2022 and 25 February 2022, in respect of two online Snapchat usernames, 'brooknicoles19' and 'mrklynton'. You failed to report these usernames within seven days as required, that is before 28 January 2022, and did not report them during your interview with police on 2 February 2022.
Charge 2 – Using a carriage service to procure a person believed to be under the age of 16 for sexual activity.
11Charge 2 relates to the content of your conversations with the police operative, purporting to be 14-year-old 'Lucy' between 21 February 2022 and 25 February 2022, being the date you were arrested by the police.
12You began the conversation with Lucy on 18 February 2022 asking ‘how’s life treating you’. 'Lucy' responded to your message on Facebook on 21 February 2022. During that conversation you told 'Lucy' that you were 36. 'Lucy' responded that she was 14, to which you replied, 'Oh, wow, ok'. Having asked if she was 'Ok talking to someone older', 'Lucy' replied that she did not mind and that she had to go to bed because she had school the next day.
13On Tuesday 22 February 2022, after 'Lucy' sent you an emoji of a sad face, you responded by asking what she was up to and whether she was 'interested in making money'. 'Lucy' replied that she was heading to school, adding: 'Make money? How?' In response you said: 'Oh shit, sorry forgot you were young'. When 'Lucy' again asked how she was to make money, you replied: 'It was sexual' and 'Lol, kinda sex' and 'other sexual things'. You told 'Lucy' that you 'Sometimes pay girls for sex [and] other sexual things', stating: 'I’m ugly. So most girls won’t do things with me unless I pay them'.
14Towards the end of that exchange of messages you asked 'Lucy' what she was thinking, asking her if that 'Would be something you would do?' 'Lucy' responded that it 'Depends, Lik (sic) how much?' You replied: '[It] depends what we do'. When 'Lucy' asked you what you wanted to do, you responded: 'Well, I like head. Eating pussy, sex, four play (sic), anal'. You asked 'Lucy' if there was 'Any of them you like?'
15The online conversation continued on 23 February 2022. On that morning 'Lucy' wrote 'Anal', attaching a surprised emoji, and asked: 'U don’t care I’m 14 then?' You replied: 'Ok, no'. 'Lucy' then wrote: 'Anal 2 scary', to which you responded: '[That’s] ok', and asked when she wanted to meet you. You told 'Lucy' that you lived in Bendigo but said you would come to her. After asking when, 'Lucy' told you she would see when she could 'skip school', and that she would 'sneak out' when her mother was at work.
16In that same conversation you asked if 'Lucy' would be prepared to send nude pictures of herself to you. 'Lucy' replied 'No', saying that she was concerned they would end up on the internet. You replied that only you would look at them. 'Lucy' reiterated she was not comfortable doing this, and you replied, 'That’s ok hun'.
17'Lucy' then told you that her mother was working on the Friday of that week, and asked if you could meet up in the city. You said that you would find accommodation in the city and asked if 'Lucy' wanted to stay overnight. You suggested that she could tell her mother that she was staying with friends.
18You asked 'Lucy' if she would like anything while she stayed with you, suggesting you would find a place with a pool, to which 'Lucy' responded, 'Sounds fancy'. You also asked 'Lucy' if she liked chocolate and said you would get her some, asking 'What’s your fav?'. You then continued the conversation asking what time she could get into the city on the train, saying 'The more time the better, lol'.
19On Thursday 24 February 2022, your conversation with 'Lucy' continued. You were sent a photo depicting a young woman with long hair, to which you responded, 'Sexy. How are you this morning?'. 'Lucy' asked if you had decided about meeting the next day, to which you replied: 'Yeah, hun. You still want to catch up for the day and night?' 'Lucy' also asked if you had found a place with a pool, and you said you were still looking. After asking 'Lucy' about school, when she replied she liked her friends, you responded: 'Weird question. Are you into chicks as well?', later asking if she was bisexual. The conversation then continued with you telling 'Lucy' you had booked a hotel on Spencer Street.
20Later that afternoon you wrote to 'Lucy' saying that you were at the hotel in Melbourne and said you could not wait to meet her. You asked if she was able to spend the night.
21On Friday 25 February 2022, the conversation began with you texting 'Lucy' at 3.44 am, saying: 'Morning', and then: 'Hey beautiful' at 7.18 am. 'Lucy' replied at 8.38 am that she was taking the train and you offered to pick her up in your car, saying it was a blue utility. 'Lucy' responded that she would contact you when she arrived at the train station. You told 'Lucy' that you were not meant to have visitors at the hotel but said you had told them your daughter might be coming and you would 'sneak [her]' into the hotel. You concluded the messages asking 'Lucy' who was the 'oldest guy' she had ever 'had sex with'. You then attempted a video call, which was not answered.
22You were arrested by police at 9.53 am on 25 February 2022, driving your blue Toyota utility. You were taken by police to the hotel room in the city where a search warrant was executed.
23During a field interview with police, you made a number of admissions, including that you owned the a Facebook account in your name, to which you provided the password. You admitted to talking to teens and possibly meeting for sex and offering them money. You agreed you had spoken to a 14 or 15-year-old girl in the last week and that you were going to meet for sex and that money was involved.
24You also admitted to owning the Snapchat accounts that are the subject of Charge 1. You admitted that the name of the girl may have been 'Lucy' and that you had asked for photos and nude photos of her, as well as asking her about her sexual preferences. Although you admitted to there being a 'sexual factor' to your decision to meet up with 'Lucy', you denied the hotel room had been booked specifically to have sex with her but rather, that you were using it on your way to stay in Traralgon.
25You told police that the prospect that 'Lucy' was 14-years-old bothered you but said that you had 'a problem and [have] been trying to get a grip on everything'. You said you were ashamed to talk about the sexual discussions you have with teenagers; admitting that you had criminal priors for touching children and that you had received counselling in the past for inappropriate sexual thoughts.
Commonwealth sentencing
26Charge 2 is a Federal offence. Section 16A(1) of the Crimes Act 1914 (Cth) ('the Act') provides that in determining the sentence to be passed in such a case, a court must impose a sentence or make an order that is of a severity appropriate in the circumstances of the offence. In addition to any other matters, the court must take into account the matters listed in s16A(2) of the Act which I will now address in turn.
Nature and circumstances of the offence
27This was plainly serious offending. The gravity of the offence of using a carriage service to procure a person believed to be under the age of 16 to engage in sexual activity is reflected in the maximum penalty of 15 years' imprisonment. This offence has been created as a measure against an increasing trend of offenders using the internet as a means of accessing children, and thereby grooming them for subsequent sexual offending.[1] The authorities make it clear that an offender's conduct is ‘to be regarded as no less morally reprehensible merely because the person to whom the communication was made, was unbeknown to him, a police officer’.[2]
[1]The Queen v Gajjar (2008)192 Crim R 76, [56]
[2]Ibid.
28This is a particularly serious example of conduct that can aptly be described as 'pernicious and difficult to detect'.[3] There are a number of features that aggravate your offending.
[3]Ibid [52].
29Firstly, even after becoming aware that the person you believed was 'Lucy' was 14, you continued to communicate with her for another five days in the knowledge that she was a child, and at school. You were 36 at the time; the age disparity of between 21 and 22 years between you and a person you believed was 14, was significant. Moreover, the nature of your communications became sexual very quickly. On 22 February, being the second time you communicated with 'Lucy' when you knew she was 14, you asked if she was interested in making money which would involve 'Lol, kinda sex' and '…other sexual things'.
30Secondly, your online exchanges were highly sexualised, indicating the nature of the sexual activity you sought to procure in explicit terms, including suggestions made by you of receiving oral sex, performing oral sex, and having anal sex with 'Lucy'. You told 'Lucy' you did not care that she was 14 when she questioned your request to engage in anal sex. You asked 'Lucy' to send nude photographs of herself to you, saying they would just be for you to look at.
31As Court of Appeal observed in Meadows v R:
'… the objective of procuring the victim’s participation in sexual activity is advanced by the use of explicit images and/or language. This is evidently done in order to introduce the victim to what the offender has in mind and to test whether the images or descriptions provoke any adverse reaction.'[4]
[4] [2017] VSCA 290, [45].
32Thirdly, you were persistent in your endeavours to engage with 'Lucy' in some form of sexual activity over the course of your online communications, asking her when she wanted to do things and saying you would be available any time and that you would come to her if she could not get to Bendigo. You asked 'Lucy' more than once if she wanted to meet up, telling her you would book a hotel in the city, and asking if she wanted to stay overnight. Your offending was deliberately and consciously designed to facilitate your engagement in sexual activity with her. You had time to desist but you did not.
33You engaged with 'Lucy' over a five day period, although I accept this is not as long a duration as may be seen in other such cases, nor did you utilise a false name or make any threats during those communications. But you did use various methods of enticing 'Lucy' to meet you, including offering to book a hotel with a swimming pool and asking what her favourite chocolate was. You also used endearments, such as telling her she was beautiful and sexy and calling her ‘Hun' through those conversations.
34Fourthly, you were also prepared to use subterfuge to meet with 'Lucy', offering to sneak her into the hotel and indicating you had told staff that you were expecting your daughter.
35Having engaged in online exchanges of this nature, you had actually travelled to Melbourne where you believed 'Lucy' would be meeting you, before being intercepted by police. You had also booked a hotel room. These actions indicate a preparedness to act on your objective of securing 'Lucy’s' participation in sexual activity with you. It is not a mitigating factor that 'Lucy' was not a real victim, although I accept that if she had been it would further aggravate your offending.
36In relation to Charge 1, which is the State offence of failing to comply with reporting obligations, you were aware of your obligations, but despite this you failed to disclose two online Snapchat accounts. This offending undermines the very important protective function of the reporting system[5] and demonstrates a lack of understanding or concern for the harm registrable offending causes[6]. I note, however, that neither of the Snapchat accounts were used by you in connection with your offending in relation to Charge 2 and that you have no prior convictions for this offence.
[5] Director of Public Prosecutions v SM(No 2) [2019] VSC 491, [22].
[6] DPP v Beck [2021] VSCA 88, [54].
37Finally, while you are not to be punished twice for earlier offending, it is a highly concerning aspect of this offending that you had been sentenced less than one month earlier for the offence of encouraging a child under the age of 16 to engage in, or be involved in, sexual activity and were subject to a 24-month community correction order at the time you engaged in the online conversations with 'Lucy'.
Contrition, guilty plea, and co-operation with law enforcement authorities
38It is significant that you indicated your intention to plead guilty to these offences at the first reasonable opportunity at a committal mention in June 2022. Through your guilty plea you acknowledged responsibility for your offending and facilitated the course of justice. You also saved the court and the community the resources associated with a trial.
39You entered your guilty plea at a time when the effects of the Covid pandemic were still impacting on the operation of the courts and as such your guilty plea has heightened utility. I take the additional benefit of your guilty plea into account.[7]
[7] Worboyes v R (2021) 96 MVR 344
40I also accept that you co-operated with police when you were intercepted, providing codes to your mobile phone and iPad and volunteering the details of the hotel where you were staying. You also made significant admissions during your interview with police, including knowing that 'Lucy' was 14 or 15 and admitting that you initiated the sexual discussion and offered her money for sex.
41However, beyond the remorse inherent in you plea and co-operation, there is no other evidence of contrition or genuine remorse for your conduct.
Personal circumstances
42I turn now to your personal circumstances.
43You are now 37 years old, having been born in July 1986.
44You were born and raised in Bendigo where you have lived most of your life. You have an older maternal half-brother and older siblings on your father's side. Your father separated from your mother and moved to live in Perth when you were 10 years old, and you only had telephone contact with him for a period after that. You report that your father had a drinking problem and was abusive when intoxicated and that this was the cause of your parents' separation.
45You resumed more regular contact with your father when you were 17 and lived with him and your step-mother for a period in your 20s. Your father passed away from a brain tumour in 2010, which was the source of significant grief for you.
46You enjoyed a close relationship with you mother until she passed away in 2018.
47You attended a local primary school but struggled with speech and learning difficulties from a young age. You had the assistance of a speech therapist in your early school years, however, you found socialising difficult and were frustrated by your learning difficulties. You report being teased for being overweight and for struggling academically. As a result, you were often absent from school missing classes, until leaving school altogether part way through Year 9. This was the extent of your formal education.
48After school you began a gardening business which you ran until you were 21 years old. You retained some clients and continued this work to a lesser extent until ceasing more recently due to problems with your physical health.
49You have also worked in transport and logistics, including as a truck driver and as a courier for a Bendigo-based company. In 2021 you began your own business as a local courier but could not continue in that role once your previous offending became known.
50In July 2020 you were involved in a serious motor vehicle collision when a vehicle, in which you were a passenger, was hit by a truck. As a result of the collision you sustained multiple fractures, deep vein thrombosis and a pulmonary embolism, for which you were hospitalised for three months. You then underwent lengthy rehabilitation. You have ongoing mobility issues, requiring crutches to walk at times.
51Your mobility is also compromised by your weight. At the time of your arrest you weighed approximately 180 kilograms and would spend much of your time in bed. Since being in custody you have received weight loss treatment and now weigh 128 kilograms. You have a diagnosis of hypothyroidism, for which you are prescribed oral medication. You experience significant ongoing pain, requiring medication. You have been diagnosed with sleep apnoea and require a CPAP machine to which you have access in custody. You report spending much of your time in custody in bed.
52Prior to your remand you were in receipt of a disability support pension for poor mental health and medical issues.
53You have a history of cannabis use from the age of 14, but which increased significantly following a back injury in your 20s. You had periods of abstinence in your 30s but recommenced using cannabis in addition to abusing alcohol significantly after the motor vehicle collision in 2020. You report abusing alcohol and cannabis at significant levels at the time of this offending.
54You have had a number of intimate relationships in your life. You had a daughter when you were 18 with your first partner but after committing sexual offences in your teens you separated and child protection services became involved. As a result, you had supervised access to your daughter on a fortnightly basis and then only three times a year. You ceased all contact with your daughter when she was two years old. You report experiencing significant depression and suicidal ideation around this time.
55You had another relationship in your 20s, during which period you were smoking cannabis on a regular basis. This was a dysfunctional relationship that ended when you were 26 years old, with intervention orders made to prevent ongoing contact between the two of you.
56Your next relationship lasted for approximately five years. Your son, born from this relationship, is now nine years old. He has been diagnosed with autism spectrum disorder. You maintained weekly contact with your son with him staying with you on weekends, until shortly prior to your remand. You report that after being charged with sexual offending child protection became involved and you are no longer permitted to spend time with your son.
57Your most recent partner separated from you shortly before you went into custody.
Cognitive capacity and mental health
58You were assessed for the purposes of this plea hearing by clinical psychologist Alison Mynard, who provided a report dated 22 March 2023.[8] In her report Ms Mynard states that you have a '…low capacity for self-awareness, self-control and self-monitoring'. She states that you struggle to express emotions and lack the ability to regulate your thoughts, urges and compulsions, particularly when affected by drugs or alcohol.
[8]Exhibit 1 – Psychological Assessment Report of Alison Mynard dated 22 March 2023.
59Ms Mynard outlines ongoing struggles with your mental health since adolescence, with difficulties learning in school, weight issues and the absence of your father, leading to anxiety and depression. Ms Mynard reports you have a history of suicidal ideation with numerous attempts in the past.
60On formal testing Ms Mynard found you to have an expressive and receptive language disorder with a language capacity well below what is expected of someone your age. Ms Mynard assessed you have a low to borderline level of cognitive functioning with a full-scale IQ of 74, combined with 'A moral immaturity' that is impacted by your impaired language skills.
61Ms Mynard concludes that you meet the diagnostic criteria for depression, anxiety, and symptoms of PTSD. In addition, Ms Mynard was of the opinion that you had some indications of an autism spectrum disorder, including social and communication deficits. Ms Mynard found that you present with strong traits of a borderline personality disorder with indications of impulsivity, suicidal ideation, and emotionally instability.
62You were subsequently assessed by neuropsychologist, Ms Louise Vernieux, in October 2023 for the purposes of your TAC entitlements. Having undertaken a detailed assessment, Ms Vernieux concluded that you meet the diagnostic criteria for an autism spectrum disorder.[9] In her report Ms Vernieux states that such a diagnosis is supported by your cognitive profile where you showed strengths in non-verbal skills and working memory but weaknesses in verbal skills, speed of information processing and cognitive function.' However, Ms Vernieux expressed no opinion regarding any connection between the ASD diagnosis and your offending conduct, as this was not the purpose of her assessment.
[9]Exhibit 2 – Neuropsychology Assessment Report of Louise Vernieux dated 23 October 2023.
Criminal history and risk of reoffending
63You have a relevant criminal history dating back to 2003.
64In June 2003 you were sentenced to a 24-month community correction order for committing an indecent act with a child under 16. It was a condition of that order that you complete a sex offender treatment program. There was then a significant gap in offending from 2005 to 2018 with the exception of a single charge of driving whilst suspended.
65In February 2018 you were sentenced to a 24-month community correction order for the offence of sexual assault where the victim was an adult.
66Then, as stated, on 21 January 2022, you were sentenced by the Magistrates Court to a further 24-month community correction order for the offence of encouraging a child under 16 to engage in, or be involved in, sexual activity.
67The circumstances of that offending may be stated briefly.[10] The victim in that matter was the 13-year-old younger sister of a friend of yours. You had known the family for five years and had attended the victim's 13th birthday. On 3 December 2020 you had an online conversation with the victim on Snapchat, during which you offered to pay her $300 to have sex with you, or other amounts of approximately $50, to find friends her age to engage in sexual activity with you. You told the victim it would 'Be our secret'.
[10]Exhibit B – Preliminary Brief in respect of the offence of encouraging a child under 16 to engage in, or be involved in, sexual activity.
Specific and general deterrence
68I turn now to specific and general deterrence.
69For offending involving the online exploitation of children, general deterrence is a paramount sentencing consideration. It is important to be clear that adults who make use of the internet to engage with children so as to procure them to engage in sexual activity, can ordinarily expect to receive an immediate term of imprisonment. Other members of the community must be deterred from committing similar offences in the knowledge that if detected stern punishment will follow. This is because there is a significant public interest in protecting children from sexual abuse.
70Having regard to your criminal history it is necessary that the sentence I impose also deters you personally from future offending of this kind in the knowledge that it is unacceptable and will not be tolerated by courts or by the community. Specific deterrence is especially significant here given you were not deterred from engaging in this offending conduct by the imposition of a lengthy community correction order for similar offending only a few weeks earlier. You offended whilst you were a registered sex offender and have demonstrated a sexual interest in children.
71In imposing this sentence, I must unequivocally denounce your offending conduct.
Prospects of rehabilitation
72I now turn to assess your prospects of rehabilitation.
73Ms Mynard undertook a detailed assessment of your risk of reoffending. In her report Ms Mynard recounts your history of sexual offending dating back to your mid-adolescence, with this offending occurring only shortly after being sentenced in the Magistrates Court for similar offending. She opines that your offending appears to have escalated over time, becoming 'more diverse… with grooming [and] sexualised messages'.
74You have demonstrated little insight into your offending conduct, although you told Ms Mynard you feel ashamed and acknowledged that such offending is wrong and against the law. However, Ms Mynard is of the opinion that you have little understanding of the harm likely to be caused to the victims of such offending. This is reflected in comments you made to Ms Myndard, stating for instance, that a 13-year-old girl might be 'willing to have sex', and that, ‘it would be fine psychologically' unless she was not willing to have sex.
75Ms Mynard concludes that you meet the diagnostic criteria for a paedophilic disorder and assesses that you pose a high risk of offending into the future, a risk that escalates if you are drug or alcohol affected.
76Ms Mynard is of the opinion that this level of risk can be moderated if you receive treatment for your mental health, drug and alcohol abuse issues and engage in specialist sex offender treatment, targeted in such a way to deal with your learning and speech difficulties. On a positive note, Ms Mynard considers that you are motivated to reduce your sexual offending in order to maintain a relationship with your son.
77You are currently working five days a week in custody sorting headphones. You have contact with a mental health nurse every two to three weeks. You also have an extensive and varied history of employment in your past, and as I have already observed, from 2005 there was a period of 13 years where you did not offend.
78However, having regard to the fact this offending occurred so soon after being sentenced in the Magistrates Court and Ms Mynard's conclusion that you pose a high risk of recidivism, I presently assess your future prospects of rehabilitation as poor. Mental health treatment, combined with specialist sex offender treatment, is certainly warranted to improve your prospects of rehabilitation into the future.
Matters in mitigation of sentence
79Having assessed the objective gravity of your offending, I now turn to the matters that were raised in mitigation of your sentence, in addition to the benefit of your early guilty plea and co-operation with authorities at the time of your arrest.
Delay
80The delay associated with these proceedings is relevant to your sentence. You were arrested and remanded in custody on 25 February 2022. This matter resolved to a guilty plea to the charges for which you are to be sentenced on 8 June 2022. More than two years have now elapsed since that date during which time you have remained on remand.
81An earlier plea date could not proceed due to the decision of another judge to await the outcome of the High Court's decision in the case of Hurt and Delzotto before you could be sentenced. This delay has been occasioned through no fault of yours. I accept that you have had these serious charges hanging over your head over this period, uncertain as to the outcome until now. This would undoubtedly have been the source of stress and anxiety for you. I have taken this lengthy delay into account in moderation of your sentence.
Verdins considerations
82On your behalf it is argued that your moral culpability, as distinct from your legal responsibility for the offending, is diminished by reason of the mental health disorders identified by Ms Mynard as having been suffered by you at the time of this offending. In the case of Verdins the Victorian Court of Appeal explained that impairment of mental functioning must contribute to, but need not have caused, the offending behaviour.[11] However, it must have some realistic connection with the offending. This means that it must be established that the offender's mental health had the effect of: 'Impairing [their] ability to exercise appropriate judgment or impaired [their] ability to make calm and rational choices or to think clearly at the time of the offence'. [12]
[11] R v Verdins (2007) 16 VLR 269
[12] Romero v The Queen (2011) 32 VR 486, [13].
83In Verdins the Court of Appeal also explained that there needs to be a clear evidentiary basis for moderating the principles of general deterrence or specific deterrence. Further, that whether general deterrence should be moderated or eliminated depends on the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the time of sentence, or both.[13]
[13]Verdins, (n 11) [32]
84Ms Mynard concludes that you present with a range of mental health impairments, including PTSD (consistent with Ms Vernieux' findings), a generalised anxiety disorder, a major depressive disorder, a borderline personality disorder and mixed expressive and receptive language disorder. As stated, Ms Vernieux concludes you meet the diagnostic criteria for an autism spectrum disorder, noting that this is consistent with weakness in verbal skills, information processing and executive function.
85As to any connection between these conditions and your offending, Ms Mynard states that this is complicated by your alcohol and cannabis abuse at the time of your offending. Ms Mynard states:
'Further exacerbating factors that contributed to his offending also included that Mr Collins’ mental health had deteriorated prior to the offending. He had lost his partner, lost his business and lost contact with his son. He was still dealing with physical pain from the accident and had been drinking and smoking cannabis to manage his pain and reduce his anxiety, depression and PTSD symptoms. His alcohol abuse at the time of the offending led to an exacerbation of his impulsivity, poor judgement and lack of reasoning skills, with a lack of self-monitoring skills, lack of restraint and consequential thinking skills. Alcohol effects have likely contributed to impaired judgement that has led to Mr Collins ignoring any thoughts of restraint.'
86Based on the expert opinions, I accept that you have long-standing issues of social adjustment that have been compromised by your borderline cognitive abilities and diagnosed language disorder. Your mental health impairments, however characterised, result in emotional instability, poor impulse control and self-regulation, which I accept contributed to your offending behaviour more broadly.
87However, based on Ms Mynard's opinion, it is difficult to discern the extent to which these matters contributed to your offending conduct as distinct from the role played by your alcohol and substance abuse. Accordingly, while I accept that your impaired mental health played some role in compromising your ability to make appropriate judgements, I am unable to conclude the extent to which they did so given the role played by alcohol and cannabis abuse in exacerbating these underlying cognitive limitations. Accordingly, I assess that Verdins limbs 1 and 3-4 are enlivened to a limited extent in reducing your moral culpability for your offending and the role to be played by both general and specific deterrence.
Burden of imprisonment
88Finally, I accept that your time in custody will be made extremely difficult for a number of reasons. First, you have ongoing physical health problems, including significant pain arising from your previous physical injuries. These limit your mobility and ability to stand for extended periods. Secondly, this is your first experience of custody. Ms Mynard states that your mental health has deteriorated since being remanded, increasing your symptoms of anxiety, depression and social anxiety. Ms Mynard is also of the opinion that your experience of prison will be more onerous due to these mental health issues but also because of your language deficits and difficulties in coping with everyday interactions. I accept that limb 5 of the decision of Verdins is enlivened and have taken these matters into account.
89In supplementary submissions your counsel states that you have been subjected to harassment and bullying in custody due to the nature of your offending, which has become known. In addition, you are socially isolated in custody and not permitted any contact with your son.
90I have taken the added burden of your imprisonment into account in sentencing you.
Comparative cases
91In sentencing for a Commonwealth offence a court must have regard to the sentences in comparable cases imposed by intermediate appellate courts in other states and territories to achieve consistency in sentencing for Federal offences.[14]
[14] The Queen v Pham (2015) 256 CLR 550, [18].
92The use to be made by a sentencing judge of comparable Commonwealth cases is twofold: first, they provide guidance as to the identification and application of relevant sentencing principles, and secondly, they may yield discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence.[15]
[15] Ibid, [26].
93However, beyond this, the extent to which an examination can assist a sentencing court, is limited. Ultimately, each case must be determined based on its own facts and circumstances.
94There are few comparable sentences in this case owing to the introduction of the mandatory head sentencing scheme in June of 2020. There is now little point in looking at earlier cases.
95On your behalf, I was referred to the case of R v Taylor,[16] which it was submitted is comparable to yours. This was a Crown appeal against the adequacy of a sentence of three years' imprisonment with a recognisance release order after the offender had served 18 months of the sentence. A sentencing discount was applied for the accused's early guilty plea pursuant to s16AAC of the Act.
[16][2022] NSWCCA 256
96In that case the offender was subject to four good behaviour bonds at the time of the offending, including one for the offence of indecently assaulting a person under 10 at the time of the offending, an offence that had been committed shortly before the offender's 18th birthday. In 2013 the offender had been convicted of other offences, including seven counts of filming for the purposes of sexual arousal, a person engaged in a sexual act without consent and of using a mobile phone to create a video recording of a child using a public toilet, for which he had been sentenced to 15 months' imprisonment to be served by way of an intensive correction order. In December 2019 he had been sentenced for failing to comply with reporting obligations.
97The offending in the case of Taylor comprised online communication with a police officer purporting to be a 13-year-old male. During early exchanges the New South Wales Court of Criminal Appeal described the offender's early communications as cautious and relatively non-committal and his contributions as relatively innocuous. The court stated that the transcript of exchanges showed a gradual escalation in suggestions of sexual activity, to which the offender eventually responded in a positive fashion. He and the police officer exchanged photographs purportedly of themselves and arranged to meet. The offender was then arrested in possession of lubricant.
98While the offender in that case also had a relevant prior criminal history, in my view the circumstances of his offending are not as serious as in your case. As the Court of Criminal Appeal observed, while the offender in that case was not induced to take part in the exchanges, nor was he found to be 'controlling the direction of the communications'. In Taylor, the offender’s engagement in the early exchanges was relatively benign. In contrast, in your case, it is you who initiated the sexualised communications almost immediately. You persisted over the course of the online communications in your endeavours to procure 'Lucy' for sexual activity, using graphically sexual language. To use the words of the New South Wales Court of Criminal Appeal, it was you who ‘controlled the direction’ of the communications with the sole objective of arranging to meet 'Lucy' for your own sexual gratification.
Other sentencing considerations
99I now turn to other sentencing considerations.
100By reason of your prior convictions for child sexual abuse offences[17], you now face a mandatory minimum head sentence of four years’ imprisonment on Charge 2 pursuant to s16AAB of the Crimes Act. This provisions only applies to the head sentence to be imposed. The normal approach to setting the non-parole period is to be followed. In other words, I must have regard to the deterrent and punitive effect of the sentence in fixing both the head sentence and the non-parole period. I must also fix a sentence that facilitates your rehabilitation.
[17]On 16 June 2003, for the offence of performing an indecent act with a child under 16, and on 21 January 2022, for the offence of encouraging a child under the age of 16 to engage in, or be involved in, sexual activity.
101In the case of Hurt and Delzotto[18], the High Court explained that a mandatory minimum head sentence as prescribed by s16AAB, is a yardstick against which the sentence before the court can be assessed. The mandatory minimum head sentence acts in this way, representing the Commonwealth Parliament’s view of the least worst possible case warranting imprisonment and operates to increase the appropriate term of imprisonment generally for the offence. The sentence is to be determined recognising the yardstick as part of the usual synthesis of all other relevant sentencing factors.
[18] (2024) 98 ALJR 485
102Sections 16AAC(2) and (3) are statutory mechanisms that allow a court to impose a sentence less than the mandatory minimum of four years’ imprisonment where the court considers that adequate recognition cannot be given to an offender’s guilty plea or co-operation without having to go below the mandatory minimum head sentence.
103On your behalf it was submitted that having regard to the mitigating factors relied upon, these statutory discounts should be applied to your sentence with a 25 per cent reduction available in recognition of your early guilty plea and a more modest reduction to give some recognition of your level of co-operation with the authorities upon your arrest. It was ultimately submitted that a sentence of imprisonment, subject to a recognisance release order, was within range, noting that no exceptional circumstances were relied upon.
104Whilst I have given weight to your early guilty plea and level of co-operation, and other matters that operate in mitigation of your sentence, I have reached a conclusion that it is not necessary for me to apply reductions pursuant to either ss 16AAC(2) or (3), given the gravity of your offending, particularly in light of your criminal history and specifically the weight I attach to both general and specific deterrence and community protection. I accept the prosecution submission that your offending represents a mid-range example of offending of this kind and warrants the imposition of a sentence above the statutory minimum when all relevant sentencing considerations are taken into account.
105I am satisfied that no other sentence is appropriate in the circumstances of your case than a sentence of imprisonment. I find I have no alternative but to impose a term of imprisonment for your offending. I direct that my reasons for so finding be entered into the record of the court pursuant to s17A(2)(b) of the Crimes Act.
Sentence
106Balancing the matters to which I have referred, whilst having regard to the maximum penalty for each offence, and guided by the mandatory minimum sentence of four years' imprisonment for Charge 2, I sentence you as follows:
107On Charge 1, the State offence of failing to comply with reporting obligations contrary to the State Sex Offenders’ Registration Act, you are convicted and sentenced to four months’ imprisonment. This sentence commences today.
108On Charge 2, the Commonwealth offence of using a carriage service to procure a person you believed was under the age of 16 to engage in sexual activity, you are convicted and sentenced to four years, ten months’ imprisonment. This sentence also commences today.
109Noting that you have no prior convictions for contravening your reporting obligations under the SORA Act, and having regard to the sentencing considerations of totality, notwithstanding the distinct criminality of that offending, I have not ordered that the sentence imposed on Charge 1, or any part of it, be served cumulatively upon the sentence imposed on Charge 2.
110This gives a total effective sentence on both the State and Federal offences, of four years, ten months’ imprisonment. I direct that you serve a minimum period of two years, eight months’ imprisonment before you are eligible for parole.
111The purpose of fixing a non-parole period is to allow you the possibility of a period of supervised release into the community to further your rehabilitation.
112Pursuant to s18 of the Sentencing Act 1991 (Vic) and s16E(2) of the Crimes Act 1914 (Cth), I declare that you have served 868 days by way of pre-sentence detention, excluding today, to be reckoned as served under the sentence I have imposed.
113Finally, pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty the sentence I would have imposed would have been a sentence of six years, six months’ imprisonment with a non-parole period of four years, six months.
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