Director of Public Prosecutions v Collett

[2025] VCC 728

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

KOORI COURT DIVISION

Revised

Not Restricted

 Suitable for Publication

CR-24-01663

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEREK COLLETT

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2024, 11 April 2025
DATE OF SENTENCE:	2 May 2025
CASE MAY BE CITED AS:	DPP v Collett
MEDIUM NEUTRAL CITATION:	[2025] VCC 728

REASONS FOR SENTENCE

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Subject:             Criminal Law Sentence

Catchwords:      Aboriginal Offender – Koori Court – Significant Bugmy mitigation and trans-generational trauma– Ill health and hardship in custody – RCSI– CCO Contravention – Aboriginal Community Justice Report – .

Cases Cited: Bugmy v The Queen [2013] HCA 37; R v Verdins & Ors [2007] VSCA 102; DPP (Vic) v O’Neill (2015) 47 VR 395; Collett v The State of Western Australia [2004] WASCA 59; Wright v The Queen [2015] VSCA 333; Tran v The Queen [2012] VSCA 110

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Wilson (Plea) Ms A. Stephanides (sentence)	Office of Public Prosecutions
For the Accused	Mr C. Tom	Theo Magazis & Associates

HIS HONOUR:

1Derek Collett, you have pleaded guilty in the Koori Court, on Indictment Q 10076205 to a charge of recklessly causing serious injury, which carries a maximum penalty of 15 years' imprisonment. You also pleaded guilty to a charge of possess a small quantity cannabis which has a maximum of 5 penalty units and a charge of possess heroin, a maximum 12 months' imprisonment.

2You also admitted two relevant summary offences: possess a prohibited weapon, and dealing in proceeds of crime, each of which carry a maximum penalty of two years' imprisonment.

3You have also admitted a contravention by way of non-compliance and
re-offending with the CCO I imposed as part of a combination sentence in 2021 and confirmed in breach proceedings in 2023.

4You have admitted relevant prior convictions. You became engaged in low level criminal activity as a child, due to the forces that had shaped you; out of hunger at times, as a  matter of survival at times, and as a response to the personal trauma, intergenerational trauma, family instability and dysfunction, and entrenched and systemic racism that you experienced at school, and in the community – all of which shaped your early life and responses.

5There was an absence of nurturing and care in your childhood – you were also subject to cruelty and abuse – and these experiences have shaped your life and your functioning to a large extent.

6You gravitated toward substance use. You have had a significant battle with addiction, particularly heroin. In more recent years, your history reflects a resort to violent responses whilst affected by substances or in scenarios where you feel under threat.

7I draw these conclusions from a number of materials, historic records and in particular the Aboriginal Community Justice Report which I will refer to as (ACJR) that is before me. I have also relied on my previous sentencing remarks – DPP v Collett [2021] VCC 1710.

8The facts of your offending before me are clearly and succinctly set out in the Summary of Prosecution Opening which was Exhibit A on the Plea and forms part of these Reasons for Sentence.

Circumstances of offending

9On 21 December 2023 you stabbed a man, without warning, from behind, causing catastrophic and life-threatening injuries to him. The reason why you did so is still not clear to me. You have offered some explanations that are hard to follow.

10You had met your victim and a third man in a car park at the rear of a bar in Windsor. Your victim and the other man became involved in a physical altercation. They were throwing punches at each other. They were moving through the car park in a southerly direction. You  advanced suddenly and drew a knife from your waistband area and stabbed your victim to his lower abdomen.

11It caused life threatening injuries. He was eviscerated, or disembowelled is another term for it. He had to hold his intestines in. Had he not received prompt medical attention from paramedics it is likely he would have died.

12Your victim needed urgent blood products and transfusion, intravenous antibiotics, he was intubated and had emergency abdominal surgery. Damage to the small intestine and bowel was identified on examination and a segment of bowel had to be removed.

13Your victim was in hospital for five days.

14The incident was captured on CCTV and I have viewed that footage.

15There has been an absence of a cogent explanation for your offending. I accept what has been put as context. You were in a deteriorating psychological state and had experienced suicidal ideation in the lead up to the offence. You had several stressors in your life relating to a troublesome neighbour, NDIS delays, and delays in relation to a compensation claim.

16You had been stabbed yourself on 15 December that year. This occurred against a background of the serious stabbing attack on you in custody in 2020 which I have referred to in my sentencing remarks of 2021.

17Your hyper-vigilance arising from these experiences, in the context of the situation unfolding on 21 December 2023, was compounded by your pre-existing complex PTSD arising from childhood trauma, disadvantage and instability of an extremely high order, further compounded by the life threatening attack on yourself in 2020.

18I accept that these factors operate in a causative way when a resort to armed violence occurs – but it does not explain your involvement to begin with. At the Sentencing Conversation you were at pains to talk about the police pushing you downstairs at the time of your arrest rather than grapple with what was occurring on 21 December 2023. It is inescapable to me that your presence and involvement arises due to your immersion in a drug mileu and its criminal interface.

19It is very serious offending. Stabbing another in the stomach. It is a life endangering act. In cases of causing serious injury the extent of the injury, and in particular any ongoing injury or incapacity, is a significant factor in determining sentence.

20Fortunately for you, the injuries were not worse. I have no information as to any ongoing consequences for your victim.

21The objective seriousness of your offence is at least mid-range. An unprovoked stabbing whilst you were not under any threat, causing life threatening injury – requires a sentence that denounces your conduct in strong terms and deters others from engaging in the same behaviour.

Personal circumstances

22When I last sentenced you, you were 46. You are now 51. You are a proud Yinjibarndi man.  You have family connections to the Noongar, Yamatji and Pitjanjatjara nations.  Your great-grandmother was from the central desert region of the Pitjanjatjara.

23I know more about your ancestry, your community and cultural connections than I did in 2021 due to the thorough and well researched Aboriginal Community Justice Report (ACJR) I have received and which is an exhibit in this case.

24You were born with a rare immune-compromised condition that required you to spend the first four-and-a-half years of your life in Perth Children's Hospital.  During this time, I was told, you did not receive visits from your parents or relatives.  Your closest relationships were with the nurses who tended to you.

25You were discharged at age four to live with your maternal grandfather.  Tragically, he passed a week later.  Around this time, you also contracted meningitis and had to return to hospital. You spent several more years there.

26At the age of seven, you were discharged from hospital to live with your aunt in Roebourne, Western Australia.  

27The ACJR goes into more detail as to the circumstances in which you and your siblings came to reside with Aunt Betty and that information obtained from your mother, is perhaps more accurate than previous information I had to hand about that matter.

28While living with your Aunt, you reported that you were beaten regularly, often until you 'passed out'.  There were other traumas that I will not express in open court here now, but will be in my published reasons, that you were exposed to and witnessed.  The ACJR goes into more detail, as I have said, than I had available to me previously as to these circumstances.  I will refer to some aspects from the ACJR.  The fact that I am referring to some aspects does not mean that there is not a lot of very useful detail and information in aspects I have not referred to.

29The history in relation to your early life that I have referred to about your time in hospital was set out at paragraphs 5 to 7, and there is a reference to a serious infection from dogs that you were interacting with as a child.  Your mother has commented that you had great compassion and deep compassion for all animals and it was not uncommon for stray dogs to be wandering the neighbourhood and you would be playing with them.  This resulted in a serious infection around the age of four or five.

30It is noted in the report that your family was profoundly impacted by the Stolen Generations.  Your grandmother was taken from her mother as a child.  That trauma was further perpetuated when your mother was just seven years old when she was taken from her mother.

31Your grandmother, your mother's mother, passed away two weeks later and the family understanding and belief is that that was due to a, what is referred to as a broken heart.  Those events were not uncommon and it is a shared experience of Aboriginal people unfortunately, as those events, as common experiences and they reflected the broader government policy of forced removals, the aim being cultural assimilation.  And those practices of course caused significant psychological harm to both children and parents and contribute significantly to what is referred to as intergenerational trauma.  It is well understood that those removals can affect the ability of a parent to parent and nurture and certainly that is something that you have expressed to the report writers, that has impacted you.

32The report also goes into your experiences at school and racism that you were exposed to, particularly by way of bullying, jibes, and racist jokes directed at you and the few others who were at the school in a predominantly non‑Aboriginal cohort.  Your experience was teachers did not intervene when this behaviour was being engaged in and your responses would often be met with punishment and even suspension.  And for you in your circumstances, suspension simply meant further trauma and negative experiences at home, at Aunt Betty's home.  In these times you would turn to culture as an escape and told the report writers that whenever possibly you and a group of similar aged boys would go out on Yinjibarndi country, where you learned about land, culture, and language, a language you can speak fluently I am told.  You would engage in cultural activities including dancing, hunting and cooking.

33Around the age of 11, you ran away and began to live on the streets of Perth.  That was to escape the experiences at Aunt Betty's which were not tempered at all by an escape to school, because the usual beneficial and social positives of school attendance were not available to you for reasons I have stated.  Between the ages of 11 and 17, you resided at various stages at Longmore Detention Centre and Riverbank Detention Centre.

34Throughout your childhood and adolescence, you were also subjected to abuse.  

35By age 17, you were regularly interacting with the courts and criminal justice system.  The ACJR goes into further detail as to particular interactions with the courts as a child.  One account which is worthy of note is an offence which you took responsibility for, which was in fact committed by your younger brother and you took responsibility for it and wore the consequences of that, in what can be a very harsh criminal justice system in Western Australia.  Fortunately, your brother has got through life without a criminal record and is a productive member of society, running his own business, perhaps in some small part to you taking responsibility for that matter when you were both children.

36You attended Clifton Hills Primary School in Kelmscott, Western Australia, as well as Kelmscott Secondary School.  You were expelled in Year 9 and again this is referred to in the ACJR and had at its heart, the racism that you frequently experienced at that school.  To your credit you completed a Year 12 certificate whilst in custody as an adult.  

37In 2021 in my remarks I stated:

Your experiences are tragically consistent with the ongoing narrative of colonialism and the experience of Aboriginal peoples across Australia.

The statistics relating to persons who enter youth justice detention whilst also being in the care of the State are alarming.  The percentage of that cohort who then go on to experience adult custody is also a cause for despair and concern.  The disproportionate representation of Aboriginal people amongst those statistics is a sad indictment on the history of colonisation, dispossession and segregation in this country.

38Those observations remain relevant today in sentencing you again.

39The ACJR sets out that history on your country and particularly at paragraphs 36-46.  I will not read out those paragraphs but they contain important historic information that is connected to you, through your family, connected to you through your ancestors, and particularly at [42] where sister Kate's children's cottage home is mentioned, particularly connected to you through your mother.  But at paragraph 46 it is stated:

At the Roeburne reserve [Roeburne being the two arising out of that reserve where you grew up] at the Roeburne reserve the influx of displaced families exacerbated overcrowding.  The reserve's inadequate infrastructure, including poor sanitation, contributed to health issues and spread of disease.  These substandard living conditions led to the deaths of several children within an 18‑month period.  Derek's family were a part of this generation who had been forcibly moved onto Roeburne reserve.  In the 1970s, WA government forcibly closed Aboriginal missions, again forcing communities to relocate into newly developed State villages, Derek's Aunt Betty and her family included.  She remained there for all of Derek's time that he lived with her.  The relocation site was built next to a cemetery.  Derek remembers how distressing this was for his community as it was uncustomary to live near where their deceased loved ones were buried.  Family groups were separated, negatively impacting traditional kinship structures and cultural practices.  The youth at this time, including Derek, who had experienced the significant cultural changes and breakdown of community, faced identity challenges leading to increased interactions with law enforcement.  Derek's first juvenile offence was in 1992 at a time when Aboriginal youth, who constituted approximately 3 per cent of Western Australia's population, represented 68 per cent of juveniles in detention, highlighting systemic issues within the justice system which continue to affect Aboriginal communities in current times.

40It is beyond the scope of these sentencing reasons to go into greater detail and explore all of those external factors and forces which set you on the path that you were set on as a teenager, but that paragraph was one which comes close to describing your early experience.

41You have a reasonable work history when in the community, which is to your credit given your background, particularly given those matters I have set out.  You have experience as a barman, a labourer, a painter and in poultry processing.  You have also spent of course considerable periods of your life in custody, particularly in Western Australia but also Queensland and this State.

42Fortunately, here, you have been able to engage in cultural pursuits including painting through the Torch Program and that has been of some considerable benefit to you.

43If you need to stand up or anything, Mr Collett, or if you need a break, just let me know.

44OFFENDER:  Okay.  (Indistinct words.)

45HIS HONOUR:  I am quite happy for you to stand.

46OFFENDER:  Yeah, I need to go to the toilet.

47HIS HONOUR:  You want to go to the toilet.  We will have a break then.  We will have a 10-minute break.  I think we have got the link till 1 o'clock.

(Short adjournment.)

48HIS HONOUR:  You came to Melbourne, one reason being to spend time with your later father, a man of Turkish heritage. Tragically he passed in August 2024 when you were in custody.

49Your mother is in poor health. Your mother attended your Plea and participated in the Sentencing Conversation. She resides in Western Australia. Despite her own struggles with the legacy of her childhood and broader inter-generational trauma, and the struggles she had parenting a number of children, your mother has surmounted these obstacles and become an activist for Aboriginal rights – and that is a  fact of which you are rightly proud.

50Prior to your remand in October 2019 on the matters which I dealt with you for in 2021, you were engaged to your then partner Jasmine.  Sadly, Jasmine passed away as a result of a drug overdose whilst you were in custody serving the previous sentence I imposed. That passing of course had a significant impact on you, and continues to have, and in a sense you have been trapped in Victoria in a cycle of offending, heroin use and incarceration in the context of this unresolved grief arising from the passings of Jasmine, and your father. The prospect of your mother's passing without you having an opportunity to be with her weighs very heavily upon you. I take this into account.

51You are a father to three children.  Your son Tennessee has reached out to you recently, facilitated by your mother. Your daughters are estranged from you, but you have a deep yearning to reconnect with them one day.

52You are currently in very poor health yourself.

53In 2021 I summarised the life-threatening attack upon you whilst you were in Port Phillip Prison where you were stabbed nine times.  You told me during the sentencing conversation at that time that you were clinically dead in the aftermath.  You continue to suffer negative health consequences, including back problems and a leaking bowel.  The perpetrators of the assault on you were charged with attempted murder.  You were a witness in the case against them.  That placed a particular stress and hardship upon you.

54You have been stabbed again in the community in 2023, as I have referred to.

55You need the use of a walker frame and this makes you vulnerable in custody. You describe yourself as a 'sitting duck'. The ACJR refers to your walker frame having a faulty wheel which has caused you to suffer falls also.

56You suffered a stroke in March last year, a seizure a month or so later, and a fall around the same time.  Your frailties are summarised in Dr Tang's report at p3, and in the ACJR at pp31 and 32.

57You suffer complex Post Traumatic Stress Disorder.  You also suffer Depression and Anxiety. Unfortunately, there are a number of traumas over many years that lie at the heart of your PTSD.

58Your experience in custody is extremely difficult. I was provided with your extensive Justice Health records which demonstrate the daily hardships and difficulties you experience as a result of your infirmities that are not experienced by others in custody.

59Dr Tang opines that you ought be on a Disability Pension and in receipt of NDIS funding.

60You are a very talented and dedicated artist. You have been engaged with the Torch Project for several years in this State. Your involvement with Aboriginal art pre-dates your time in Victoria. I have seen a number of your artworks. I have also read the testimonials as to your talents and witnessed the Elders appreciation of your talents across three Sentencing Conversations.

61You clearly have a viable future as a working artist. Andy Brigham from VAHS who wrote a letter on your behalf noted amongst other things that you have around 40 works of art stored at your Richmond apartment awaiting your return.

Participation in Koori Court

9You participated in the Koori Court Sentencing Conversation and engaged with the Elders Uncle David and Aunty Yvonne.             

10You spoke about the stabbing you experienced in December 2023, and your treatment at the hands of the police at the time of your arrest. You spoke about your physical infirmities, in particular the fluid retention in your legs.

11You expressed some remorse for your victim. You also expressed sorrow at the fact you were back in custody having said at your previous hearing that you would never be back again. You expressed anxiety at the fact your apartment in Richmond remains full of your belongings, including artworks, and items that had belonged to your father or to Jasmine and thus had great sentimental significance.

12You spoke about your son with great warmth, a son who had re-connected with you via your mother, and how you were motivated to mend your ways and become a father figure and mentor to him, teach him to paint.

13You talked about how vulnerable you were in gaol, and how you wanted to see your mother while she was still alive. It was clear to me, having observed your participation in the Sentencing Conversation in 2021, and again in 2023 during a Koori Court CCO contravention hearing, that you were somewhat diminished, physically and cognitively.

14Once again you spoke with confidence about your art. The Court was provided with copies of several works. They remain of a very high standard and I note the ACJR also contains copies of some of your better known pieces. You see the future as one where you are a successful Aboriginal artist and there are very good prospects of that occurring. You were an accomplished artist in 2021, and your skills have not diminished. Your pursuit of Aboriginal art as a commercial venture, as a therapeutic exercise, and as an exercise in teaching culture and mentoring others as an Elder, and engaging with culture yourself, are pursuits that are very much in reach.

15I take into account your participation in the Sentencing Conversation and your willingness to be confronted by the Elders and others as to your crimes, your past and your future.

Plea Guilty

16Your plea of guilty is of significant utilitarian significance.  It is an early plea of guilty and you are entitled to a discount for your plea of guilty and that discount is accorded to you.

Bugmy

17I have not specifically mentioned the Bugmy principle. Due to the matters set out in the ACJR and elsewhere, and adopting my remarks at paragraphs 23‑31 of my 2021 sentence, you are entitled to the full mitigatory effect of the Bugmy principle. I am satisfied that there is a connection between the forces that shaped your responses as a child and your offending behaviour. 

18I am also satisfied that assessment of your moral culpability and the relevant sentencing consideration, is the fact that your introduction to drug use was as a child, and as a disadvantaged child, and the principles that emerge from cases such as R v Brooks; R v McKee have application in your case.

Hardship in custody

19You are also entitled to significant mitigation due to the hardship in custody that you experience.  Your experience of custody is harsher for you than it would otherwise be due to your illnesses and infirmities.

ACJR

20I will come back to the ACJR.  It has been a very useful source of information in relation to this sentencing exercise. It is a thorough, well-researched and detailed account of matters relevant to you personally – that is your strengths and weaknesses, your needs and criminogenic factors – but also in relation to your family, your community, and the relevance of colonial impacts and enduring traumas that are relevant to your current circumstances as they are to sentencing considerations also.

21The report was particularly useful in outlining the connection between your mob's history, your early life, your trajectory through life, and battles with homelessness, drug use, associated criminal activity including crimes of violence.

22I will note particularly the paragraphs at 36–43.  Paragraph 46 I have already referred to.  Paragraphs 51–55, in particular illustrating how those wider circumstances relate to you personally and were reflected in your early life.  At [56] it is stated that your family were profoundly impacted by the Stolen Generations and it goes into some further detail in relation to those experiences.  At [59] it is stated:

On the day of his offence, Derek recalls feeling overwhelmed and hypervigilant, describing a sense of emotional disconnection, triggered by unresolved trauma.  He deeply regrets what occurred and recognises that his actions were shaped by years of unhealed psychological wounds.  Despite decades of involvement with the criminal justice system, he was never given access to effective mental health support, instead turning to substance use as a means of coping.  Supporting Derek requires more than clinical intervention.  It demands a culturally safe and trauma informed approach that recognises the historical injustices faced by Aboriginal people.  Long term healing will depend on rebuilding trust, improving access to care, and addressing structural inequalities that continue to impact Aboriginal communities today.

23Those sentiments expressed in the ACJR are well supported throughout all the materials I have seen in your case and through your history, including the health materials.

24The report provides useful recommendations as to community-based supports and programs that would assist you and I have had very careful regard to many aspects of the report.  I have also had regard to what is available, what is recommended by way of culturally appropriate therapeutic supports and what is available in the circumstances are not the same thing unfortunately.  Further, what is available when all the sentencing considerations are properly balanced is not the same thing as what is recommended.

25Your participation in the report process cannot have been easy. It involved you re-telling past significant traumas. I take your participation in the process into account in your favour.

26Your prospects of rehabilitation are linked with you having the supports available to maintain your accommodation and to maintain a lifestyle where you can remove yourself from drug use and its associated criminogenic factors, where you can paint and engage with culture, strengthen bonds with your children and your mother, and work hard to address your PTSD and other mental health infirmities. You have shown that you are willing and able to engage in rehabilitative programs and with services and that is promising.

27Your Counsel submitted that a period of custody in combination with a CCO was the appropriate sentence in your case. I have given this submission careful consideration. Ultimately, I have concluded that in your case the factors of general deterrence, and denunciation, having regard to the objective gravity of the offence, require the imposition of a head sentence and
non-parole period.

28The sentence I impose is one of considerable leniency. I consider that your overall circumstances including your ill-health and disability, your mother's circumstances and how it weighs upon you, the hardship of your experience in custody, childhood trauma you have experienced, and disadvantage, and intergenerational traumas and experience, all engage the principle of mercy and the sentence that I am about to impose I consider is one of great leniency and demonstrative of mercy.

Sentence

29I sentence you as follows, Mr Collett:

30On Charge 1, you are sentenced to be imprisoned for two years and six months.

31On Charge 2, you are sentenced to be fined $100.

32On Charge 3, you are sentenced to seven days' imprisonment.

33For the relevant summary offence of carrying a prohibited weapon you are sentenced to one month imprisonment.

34For the relevant summary offence of dealing in proceeds of crime, three months' imprisonment.  All sentences are to be served concurrently.

35That makes a total effective sentence of two years and six months' imprisonment.

36I set a non-parole period of 21 months.

37I declare 480 days of pre-sentence detention already served.

38Pursuant to s6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty I would have sentenced you to a total effective sentence of three and a half years' imprisonment with a non-parole period of two years.

39In relation not the contravention of CCO, I confirm the order and take no action on the contravention.

40Is there anything I have overlooked, Ms Stephanides?

41MS STEPHANIDES:  Only whether or not Your Honour is in a position to order both the forfeiture and disposal orders, which were not opposed.

42HIS HONOUR:  I make both those orders.  Thank you, Ms Stephanides. 

43Anything unclear about that (indistinct words).

44MR TOM:  No, Your Honour.

45HIS HONOUR:  All right.  All the best of fortune to you, Mr Collett.  I will adjourn the court.

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