Director of Public Prosecutions v Collett

[2021] VCC 1710

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-01072

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEREK COLLETT

---

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	11 & 21 October 2021
DATE OF SENTENCE:	22 October 2021
CASE MAY BE CITED AS:	DPP v Collett
MEDIUM NEUTRAL CITATION:	[2021] VCC 1710

REASONS FOR SENTENCE

---

Subject:             Criminal Law Sentence

Catchwords:      Aboriginal Offender – Koori Court – Bugmy Principles – Verdins Principles – Theft – Armed Robbery.

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: Total effective sentence of 20 months' imprisonment in combination with a two and a half year community corrections order – License cancelled and disqualified for 12 months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Mr T. Battersby	Theo Magazis & Associates

HIS HONOUR:

1Derek Collett, you have pleaded guilty to one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment, and one charge of theft, which carries a maximum penalty of 10 years’ imprisonment.

2You have admitted relevant prior convictions. 

3The facts of your offending are clearly and succinctly set out in the summary of prosecution opening which was Exhibit 1 on the plea and forms part of these reasons for sentence.

Circumstances of offending

4On 8 August at approximately 7.45 am, your victim was driving along
Mason Street in Collingwood.  He spotted you standing near the entrance to his work car park and noticed you looking at him.  Your victim then opened the boom gate to the car park and parked between two other cars.

5You entered the car park as your victim collected a number of items from within his car.  You walked past the victim’s car and looked towards him before turning around and walking towards Mason Street.  The victim got out of his car and opened his rear driver’s side door, retrieving a satchel containing a HP Folio Laptop and an Apple iPad Mini.

6As your victim closed the rear door, he looked up to find you standing between him and the car parked beside him.  You spoke to the victim but he could not understand you. 

7You took several steps closer to your victim without saying anything further and removed a tomahawk from your right pants leg.  You raised it above your head and waved it.

8Using your left hand, you grabbed hold of your victim’s jumper and walked him backwards.  You made demands of your victim, asking how much money he had and where his wallet was.  You asked him to give you his watch and phone, as well as asking if he was wearing any jewellery.  Your victim told you that he was not wearing a chain or jewellery and he opened his collar and showed you his hands to prove it.  You also demanded his keys.

9You repeatedly told your victim to get on the ground.  You used your left hand to push on your victim’s shoulder in an attempt to force him to the ground.  Your victim complied and got down onto his knees, but told you that he could not go any further as he had a bad knee.  Your victim placed his satchel on the ground against his car.

10He stood up as he could not get his wallet from his pocket while on his knees.  He provided you with the keys to his vehicle and showed you that his wallet was empty, telling you that he had no money.  You responded by telling him, 'We’re going to the bank to get money out'.  Your victim told you that he didn’t know where a bank was nearby but you told him to, 'Get in the car'.

11You struggled to unlock the car so your victim helped you.  You opened the driver’s door, telling your victim to get into the passenger’s seat.  The victim slowly walked around the car while you watched him, still holding the tomahawk and telling him to get into the passenger seat.

12Once your victim started to open the passenger door, you got into the driver’s seat.  He took his chance to run away from the car, heading towards
Mason Street.  You got out of the car and yelled to him, but he kept running.  You got back into his car while the victim used his phone to call 000.  After a few moments, you drove out of the car park.

13Just prior to committing the offences, you had injected a mixture of heroin and methamphetamine.  However, you had only expected to inject heroin, apparently.  As a result of the drugs in your system, you say you lost control and were not yourself.  You say that you never intended to physically hurt your victim.

Investigation

14At approximately 8:00 am, the police arrived at the car park.  The victim relayed to them what had happened and provided his jumper to the police as it had been touched by you.  He went back to the car park and saw that you had also taken the satchel containing his laptop and iPad.  Police attended a nearby McDonald’s and obtained their CCTV footage. 

15At around 2:15 pm on 9 August 2019, police located the victim’s vehicle in Abbotsford.  It was towed from that location.  Police also canvased the area and obtained CCTV footage which captured you in the area.  A DNA sample was obtained from the victim's jumper, which returned a positive match to you.

16On 22 October 2020, police attended Port Phillip Prison to interview you.  You answered all questions put to you but denied any involvement in the offending.  You stated that on the morning of the offending you would have been in bed in the South Melbourne high rises.

17When asked about the victim’s car, you stated that you went to a squat in Richmond to get drugs and two men attended in a red ‘hotted up’ Commodore and that you sat in the driver’s seat.  You stated that as soon as you knew it was stolen, you did your best to wipe down all the surfaces you touched and that you wouldn’t have gotten in had you known it was stolen.

Victim impact statement

18A victim impact statement was prepared by your victim, Mr Pryor, and filed on his behalf.  This was Exhibit C on your plea and I have had regard to its contents.

19Mr Pryor outlines the consequences of your offending both in the short and long term.  He detailed the fear and paranoia that he endured in the immediate aftermath of your attack.  He no longer felt safe in his own home, suffered sleepless nights and became anxious in public when people appeared agitated.  The ripple effects of your offending extended to his wife, his mother and his children, who were forced to grapple with the, 'What ifs?', as he described them.

20Mr Pryor wrote in such a forthright and matter-of-fact way about his experience and the effects upon him that it creates great proximity and relatability to his experience for those reading and listening.  How can an honest, hardworking citizen such as your victim be so severely impacted, for no good reason, by a random stranger?

21That sentiment produces justifiable frustration and anger in the community at actions such as yours, that are so violent, so terrifying and so harmful.

Objective gravity of offending

22The seriousness of your offending is reflected in the maximum penalties -
10 years’ imprisonment for theft and 25 years’ imprisonment for armed robbery.

23At the time of the offending, you were armed with a tomahawk.  You used this to intimidate your victim into complying with your various demands.  You also used your physical presence, cornering your victim in a confined space between the cars.

24The brandishing of weapons by offenders to instil fear in vulnerable victims so that they will comply with the offender’s demands for property must be condemned in the strongest terms.

25I must impose a sentence that adequately denounces your crimes.  I must also consider the protection of the community from the risk posed by you when you are in the community.  Given your criminal history and complex needs, that risk is high.

Personal circumstances

26I was told that you are a 46-year-old 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.

27You 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, you did not receive visits from your parents or relatives.  Your closest relationships were with the nurses who tended to you.

28You were discharged at age four to live with your maternal grandfather.  Tragically, your grandfather died a week later.  At this time, you also contracted meningitis and had to return to hospital.

29At the age of seven, you were discharged from hospital to live with your aunt in Roebourne, Western Australia.  While living with your aunt, you have reported that you were beaten every night for four years, often until you ”passed out”.[1]  You also witnessed your half-sister being raped by your aunt’s husband and your cousin.  You recall attending school with bruises and eating dog food off the ground at this time.

[1] Psychological Report of Ian Mackinnon dated 3 August 2021, page 3.

30At the age of eleven, you ran away and began to live on the streets of Perth.  Between the ages of 11 and 17, you resided at the Bedford Hostel, Longmore Detention Centre, and the Riverbank Detention Centre, at various stages.

31Throughout your childhood and adolescence, you were also subjected to sexual abuse.  

32By age 17, you were regularly interacting with the courts and criminal justice system.

33You attended Clifton Hills Primary School in Kelmscott, Western Australia, as well as Kelmscott Secondary School.  You were expelled in Year 9.  This was the end of your formal education in the community.  To your credit however, you completed a Year 12 certificate while in custody.  You report that you can now read and write okay.

34A significant period of your adolescence was spent living on the streets, in residential units and group homes and in youth detention.  Your experiences are tragically consistent with the ongoing narrative of colonialism and the experience of Aboriginal peoples across Australia.

35The 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.

36You have a reasonable work history when in the community, which is to your great credit given your background.  You have experience as a barman, labourer, painter and in poultry processing.  You have also spent considerable periods of your life in prison, particularly in Western Australia and more recently, in Queensland.

37You have had only occasional contact with your parents since adolescence.  On 3 August 2021, psychologist Ian Mackinnon noted that you were “hopeful of being able to spend time with [your] father, before he passes away”.[2]  Tragically, your father died from bowel cancer in August this year.

[2] Psychological Report of Ian Mackinnon dated 3 August 2021, page 7.

38Your mother currently resides in Western Australia and is also affected by significant health issues.  She has worked as an activist for Aboriginal
rights – a fact of which you are particularly proud.

39Prior to your remand in October 2019, you were engaged to your partner Jasmine.  Sadly, Jasmine passed away as a result of a drug overdose whilst you were in custody.

40You are a father to three children, aged 17, 21 and 28.  With the exception of your youngest child, you have no ongoing contact with your children.

41You are currently in poor health, which is being managed in custody. Contributing to your health issues are the consequences of an altercation that occurred at Port Phillip Prison where you were stabbed nine times.  You told me during the sentencing conversation 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 have been charged with attempted murder.  You are a witness in the case against them.  The stress and hardship that places on you in custody is a matter that is well understood in the courts.

42You have remained abstinent from drug use while incarcerated and currently receive methadone.  You have also completed a number of courses whilst in custody, including a Certificate II in Kitchen Operations, a Substance Use Program and a Healthy Lifestyle Plan program.  You have also completed a Certificate II – Mumgu-dhal tyama-tiyt, which is a course that helped facilitate your exploration of Aboriginal culture and community.

43You are a talented artist and have been engaged with the Torch Project. Susannah Day, Program Manager, describes you as a 'fantastic painter who is creative and a naturally talented artist'. [3]  She reports:

[3] Letter of Susannah Day, The Torch Program Manager, dated 10 February 2021.

'Derek displayed a very strong commitment and desire to continue his cultural exploration of his Yamatji, Wangai and Noongar heritage, and, to find a new way forward in his life through connection to, and artistic expression of, his cultural heritage.'[4]

[4] Letter of Susannah Day, The Torch Program Manager, dated 10 February 2021.

Intellectual functioning & mental state

44Psychologist Ian Mackinnon opines that your functional intelligence and general cognitive functioning appears to fall within the normal adult range. [5] 

[5] Psychological Report of Ian Mackinnon dated 3 August 2021, page 8.

45However, he assessed you as suffering with long standing Complex Post Traumatic Stress Disorder, with multiple developmental antecedents – alternatively known as Complex Trauma Disorder.

46According to Mr Mackinnon, the antecedents to your Complex Post Traumatic Stress Disorder appear to have been:

“…the multiple developmental traumas he suffered during his childhood and adolescence arising from his parents’ abandonment of him, the seven years he spent as a child inpatient and the ongoing medical crises and treatment he experienced during this period, the psychological and physical abuse he suffered when placed with an aunty, exposure to multiple other acts of violence and depravity, later episodes of serious assault in which he was victimized and suffered serious injuries, periods of incarceration and other damaging experiences.”[6]

[6] Psychological Report of Ian Mackinnon dated 3 August 2021, page 9.

47The symptoms you continue to suffer include:

“…anxiety, depression, avoidance behaviour, flashbacks, nightmares, identity confusion, paranoia and mistrust, emotional lability, disturbed sleep, sensitivity to environmental cues and triggers, re-living, intrusive thoughts, low frustration tolerance, chronic interpersonal difficulties, intense fears of abandonment and personal rejection, low self-esteem, destructive and self-destructive impulses and substance abuse…”[7]

[7] Psychological Report of Ian Mackinnon dated 3 August 2021, page 8.

48Mr Mackinnon opines that your decline into drug use and continued drug use throughout your life was “…primarily as a means of self-medicating [your] chronic distress”. [8]

[8] Psychological Report of Ian Mackinnon dated 3 August 2021, page 9.

49Your experience in custody has been difficult, particularly following an altercation during which you were stabbed multiple times.  And as I said, I was told by you that you were clinically dead in the aftermath.  You also stated that the experience has led to deep reflection on your part.  You are deeply traumatised, understandably.  In combination with the loss of your father and your partner, the trauma of the attack on you places you at a watershed moment in your life.  You have stated that you are over the drugs.

50As I have stated, I understand that you will be required to give evidence in the court proceedings relating to the matter.  I accept that the attempt on your life and its consequences has had a significant impact and psychological effect.  There is a clear link between your mental wellbeing and your experience of imprisonment.  As stated in the report of Mr Mackinnon:

‘[Should] Mr Collett be imprisoned for a further significant period, he will no longer cope well enough in the prison environment. Mr Collett is currently living with fear of further attacks, high anxiety, suspicion and paranoia and he struggles to have his complex medical issues adequately treated. In my opinion, the prison environment is inherently threatening for him and there are significant limitations on what the prison system can provide him with. In this context, Mr Collett’s physical and mental health issues are not likely to improve in that environment. Indeed, they are likely to worsen and Mr Collett will pose a high risk for self-harming and suicide attempts’.[9]

[9] Psychological Report of Ian Mackinnon dated 3 August 2021, page 11.

Prospects of rehabilitation

51The Supreme Court of Western Australia in 2004 noted that, on the one hand, you are an individual in need of ongoing treatment and rehabilitation.  On the other, however, you are a person with an entrenched pattern of offending behaviour.  

52I’ll read from the Court’s judgment from paragraphs 9-12:

9 In order to understand what was said by the learned sentencing Judge about parole, it is necessary to refer briefly to the applicant's background. He was at the time of sentencing a 30 year old man. His Honour accepted a submission by the applicant's counsel that he had had a "wretched" upbringing. That upbringing was set out in more detail in the report of Ms Fisher, a counsellor at the Sexual Assault Resources Centre. From birth to 4½ years of age he spent a great deal of time either in Princess Margaret Hospital or with his grandparents. However, he and three of his oldest siblings were then sent to live with relatives. One relative subjected the applicant, from the age of 4½, to very harsh treatment including regular beatings. In addition, it appears that he witnessed the sexual abuse of his sisters by another relative. Unsurprisingly, his behaviour became uncontrollable and he began to run away. At the age of 11 he was made a ward of the State and sent to a camp which he described as being an equally harsh environment. At 12 he was reunited with his mother who had by then married again. Unfortunately, his mother's husband also severely mistreated the applicant. At this time the applicant was also subjected to sexual abuse by another person, in circumstances which it is not necessary to detail. He began to steal and was introduced to amphetamines and sniffing. He has a history of illicit drug use.

10Not surprisingly, he has a very significant record of juvenile offending and has spent a significant amount of time in and out of juvenile detention centres. His adult record of offending has two characteristics. On the one hand, his offending appears to be less frequent now than it was as a juvenile, there being apparently some periods of time during which he has managed to refrain from offending. However, on the other hand, his offending has become more serious and includes convictions for assault occasioning bodily harm, going armed so as to cause fear and threats to kill.

11It was said by the applicant's counsel that he had on one occasion successfully completed parole. However, on three other occasions on which he had been offered parole his parole had been cancelled. Further, as I have already noted, these offences were committed within minutes of being released on bail in respect of other offences.

12A shorthand way of summarising the applicant's antecedents would be that he is, on the one hand, obviously a person who is need of counselling and rehabilitation but that, on the other hand, he is obviously a person with an entrenched pattern of offending behaviour.[10]

[10]Collett v The State of Western Australia [2004] WASCA 59.

13Seventeen years on that observation has even greater force.

14Your lengthy criminal record and history of incarceration coupled with your underlying Complex Post Traumatic Stress Disorder gives me cause to be guarded about your prospects of rehabilitation.

15However, despite your lengthy criminal record, your crimes generally relate to driving matters, drug related matters, theft and burglary.  There are crimes of violence in your past, many including the threat of physical violence, as in the present case, and on one occasion referred to by the Court of Appeal in Western Australia, assault occasioning bodily harm. 

16Generally, however, there is an absence of the deliberate infliction of physical harm in your history.  You do not appear to have a strong propensity for the violent offending that is the subject of the current matter before me today.  Nor a lengthy or demonstrated willingness to inflict serious physical harm on your victims.

17Personal histories such as yours often precipitate a history of violent offending accompanied by the occasion of serious physical harm to others.  Based on your presentation at the sentencing conversation, I agree with Mr Mackinnon’s view that you possess a strong underlying conscience and sense of morality.  However, it is also clear that your personality is altered by substances to a significant degree and this is a matter to which I have regard.

18You have a terrible history of offending behaviour related to substance abuse.  You are making progress, it seems, in rehabilitation from addiction whilst in custody.  Your prospects of rehabilitation are dependent upon you being supported upon release to continue on the path of rehabilitation from illicit substance use.

19The attitude expressed by you during the sentencing conversation as to recent events and what I have described as a watershed moment, lead me to considering mercy in your case, in order to seize an opportunity to break the cycle of repeated gaol terms due to drug related offending.

20Ultimately, it will be up to you to be firm with yourself and take advantage of the supports that will be in place and to channel your energies into productive pursuits, such as your artwork, in order to rehabilitate, lead a fruitful and rewarding life, and avoid the further trauma of incarceration.

Other factors in mitigation

21Mr Battersby on your behalf raised a number of factors in mitigation.

22The Bugmy principle was one he referred to.  That principle applies in the assessment of subjective culpability in respect of any offender whose responses and behaviour have been so indelibly shaped and influenced by childhood experiences of deprivation, destitution, neglect and disadvantage, that the courts recognise a difference in the level of moral responsibility when measured against other offenders.  The principle applies regardless of ethnicity or cultural background.  Sadly, it is often called upon in sentencing Aboriginal offenders who share a past such as yours.

23In Victoria, as elsewhere in Australia - notably in your home State of Western Australia, Aboriginal people are overrepresented in prison.  The courts and parliament have come to acknowledge in more recent years that inequality and structural racism, caused by colonisation and historical laws, policies and systems, which explicitly excluded Aboriginal people and culture, have led to this overrepresentation.

24While these factors have driven overrepresentation of Aboriginal people in custodial settings, I must engage in individual sentencing rather than seek to use your case as a vehicle to give effect to a well-placed policy of driving down the over representation of Aboriginal people in custody.

25I simply make the point that the disadvantage and trauma you have experienced since infancy cannot be so easily separated out from the history of disadvantage and subjugation of Aboriginal people in our community.

26Your childhood and developmental years were disadvantaged, deprived and attended by trauma – that is a fairly shallow and understated description of the facts.

27In Bugmy, the High Court described the manner in which factors of disadvantage are relevant to an assessment of an offender's moral culpability in the following terms:

“'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way…

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things a background of that kind may compromise the person's capacity to mature and to learn from experience.  It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding the person has a long history of offending… 

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision.”[11]

[11]Bugmy at [40], [43] – [44]

28The court went on, of course, to temper the concept of ‘full weight’, with particular reference to individuals who have demonstrated an inability to control a violent response to frustration and the corresponding increase in the importance of protecting the community from that offender.

29This is a relevant matter to bear in mind in your case. 

30The relationship between your traumatic and dysfunctional upbringing, your substance abuse, your decline into repeated criminality and your offending in this case is centrally relevant to a proper assessment of your subjective culpability.  The interplay of these factors needs to be considered as a whole rather than individually.

31In my view, the interplay of these factors does provide significant mitigation in your case.

32It was submitted by Mr Battersby on your behalf that the Verdins principles are enlivened in your case.

33It was conceded by the prosecution that the sixth limb of Verdins relating to hardship in custody is applicable.  It is clear that imprisonment will have a significantly adverse impact on your mental health.  During your imprisonment, you have been the victim of a serious assault, which I have referred to.  This traumatic experience has exacerbated your already significant mental health issues and pre-existing vulnerability.  This history means that you will be subject to fear of further attacks, high anxiety, suspicion, and paranoia.

34I also take into account separately, your experience in custody as a witness in such a serious criminal matter, where the accused are also prisoners.

35Your counsel also submitted that the need for general deterrence should be moderated given the psychological consequences of your deprived background.  As a result of your Complex Post Traumatic Stress Disorder, which I have also referred to above, you experience a myriad of serious and debilitating symptoms.  As Mr Mackinnon notes, there is a link between your Complex Post Traumatic Stress Disorder and your substance abuse and, of course, your substance abuse and the offending in this instance.

36It was not urged upon me that I should find a nexus between mental functioning and the commission of the offence in the Verdins sense, however.  It was not submitted that your subjective culpability should be moderated in the Verdins sense.  Submissions in that regard were made due to Bugmy mitigation - which I have accepted.

37The submission was made that general deterrence ought be moderated due to your psychological presentation due in part to what I will for brevity’s sake refer to as Bugmy factors.  I accept that I should moderate the need for general deterrence slightly in your case.  I refer to Wright v The Queen and also Tran referred to in the submissions, citation of which will be provided in my written reasons.[12]

[12]Wright v The Queen [2015] VSCA 333 at [42], [63] - [64]. See also Tran v The Queen [2012] VSCA 110 at [12].

Participation in Koori Court

38You participated fully in the Koori Court sentencing conversation and engaged with the elders and Koori Court officer well.  You were respectful and genuine despite this being a challenging environment for you.

39You spoke of your childhood experiences, stating that you had been ‘mistreated all my life.’  You spoke of being physically and sexually abused, of seeing your sister raped when you were seven, and of being flogged under a cold shower with a rubber hose.

40You said you, ‘always used to get hurt a lot,’ but you self-described as a,
‘kind-hearted, good kid.’  You observed that violence had been, ‘imprinted on my lifestyle', to quote you again.

41You spoke at length about the gaol assault and the anxiety you experienced.  You also spoke of the anxiety and panic you felt every day prior to your incarceration.

42The sentencing conversation took on a brighter tone when discussing your great skill as an artist.  You articulated a strong connection to your culture and a desire to share your knowledge through a variety of mediums.  Documents received from The Torch program outlined steps you are taking to equip yourself with the skills to publish and produce stories for children.

43You also take great pride in your painting.  You stated that your art allows you to express yourself and that you find it peaceful and therapeutic.  Your creativity and natural talent are echoed by the employees of The Torch program. 

44During the sentencing conversation, what I find to be your fundamentally gentle nature, when not under the influence of substances, was evident.  Consistent with the report of Ian Mackinnon, you stated that despite having been through a lot, you aspire to be kind to others.  This presentation is clearly inconsistent with your disposition when affected by drugs.

45I 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.

46You expressed remorse during the sentencing conversation.  You also expressed an intention to write a letter of apology, and you have now done so.  I've received that and that will be an exhibit.[13]  It's well-written and intelligently written.

[13] Exhibit 10.

47Whether such offerings are of much solace to your victim, or any victim for that matter, is not known.  I do consider that you have expressed appropriate remorse, but it is difficult to get a strong sense of whether that remorse is genuine or not in your case, which is not altogether surprising given your life experience.  But I take into account the fact of writing the letter and the expressions of remorse in your favour.

48Your plea of guilty is of particular utilitarian significance given the crisis that currently exists within the trial list in this court.  It is conceded by the prosecution that your plea facilitated the early resolution of the matter and I take this into account.

Impacts of COVID-19

49Your remand on these charges has been in the context of the COVID-19 pandemic.  The particular hardship caused by the pandemic for prisoners is well documented and I take that into account in determining your sentence.

Other sentencing considerations

50I have also had regard to the principles of totality and some delay in the bringing of charges in your case.  I also note that both charges arise out of the one episode of offending.  

51In particular, I have taken into account that you have been in custody for two years or thereabouts.  However, the pre-sentence detention available to you is less than a year.  I take into account the fact that you have been in custody since October 2019.

52Your case requires a difficult balance between the substantial mitigatory matters to which I have referred, and the need for denunciation, general deterrence and the protection of the community.

53Your Counsel submitted that a combination sentence with a community corrections order, with a condition that you attend Wulgunggo Ngalu Learning Place was within the range.

54I had you assessed for a community corrections order with particular reference to Wulgunggo Ngalu.  Unfortunately, Wulgunggo Ngalu are not able to accept you at present due to the opiate replacement therapy you are engaged in.

55In a further plea, I indicated that I was not contemplating a sentence that would see you released from custody on a community corrections order in the immediate future.

56Having considered the matter further and aided by yesterday’s further plea, I have decided to exercise mercy in your case.  I consider that there is occasion to impose a merciful sentence due to what I have accepted is a watershed moment in your life brought about by the life-threatening attack on you and its consequences, the passing of your father whilst you have been in custody, and the passing of your partner.

57I have come to this view in no small part due to your own expression of this during the sentencing conversation.

58I have also had in mind the onerous circumstances of your experience in custody due to being a witness and the stress and anxiety this creates.

59Specific deterrence is a relevant factor in your case of course,but given my view of this being a potential turning point in your life, the opportunity to break the cycle and put some faith in your ability to make good on the statements and promises you have made, is justified.  

60I have also considered that in your case the structure available on a community corrections order will be a more effective way of endeavouring to break the cycle of recidivism than a parole period.

61You are an intelligent man. You are a talented man.  And you are clearly a better person than the facts of this crime would indicate you were at the time.  Don’t squander this opportunity which I suspect will be your last.

Sentence

62I sentence you as follows, Mr Collett:

63On Charge 1, you are sentenced to be imprisoned for 20 months in combination with a community corrections order of two and a half years' duration.

64On Charge 2, you are sentenced to be imprisoned for six months. Such sentence will be served concurrently.

65That makes a total effective sentence of 20 months' imprisonment in combination with a two and a half year community corrections order.

66Special conditions of that community corrections order include:

·75 hours of unpaid community work.  Up to 50 hours of therapeutic treatment can be credited towards that;

·Drug treatment conditions as directed;

·Mental health treatment conditions as directed;

·Behavioural programs to reduce offending as directed;

·Other programs as directed; and

·Supervision and judicial monitoring, commencing three months after your date of release on the community corrections order.  And that means you'll be back before me, for monitoring, three months into your community corrections order.

67And I make note that I have recommended and do recommend that a culturally specific facility or program such as Wulgunggo Ngalu be pursued if available.  And that's my reason for stating other programs as directed.

68Now is it 310 days of pre-sentence detention?

69MR BATTERSBY:  It's 309 agreed Your Honour.

70HIS HONOUR:  So, 309.

71MR BATTERSBY:  Yes.

72HIS HONOUR:  I declare that you have served 309 days of pre-sentence detention.

73Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your plea of guilty I would have sentenced you to a total effective sentence of six years’ with a non-parole period of four years’.

74HIS HONOUR:  Mr Roper given there's effect of motor car, is it incumbent upon me to make an order against his licence, or is only optional?

75MR ROPER: With the s.89(4) of the Sentencing Act makes it make mandatory to make an order, though it doesn't specify any, it's basically such time the court deems fit, but the court must make an order.

76HIS HONOUR:  Yes, well - - -

77MR ROPER:  In the case of a conviction, yes.

78HIS HONOUR: Yes, all right. Well, I'm not aware of his licence status, but I cancel and disqualify any licence for 12 months, pursuant to s89 of the Sentencing Act.  All right now, a document's going to be prepared, Mr Collett and that'll be forwarded to you in custody for your signature, but I must ask you, and Mr Collett can be unmuted if he's muted.  I must ask you whether you consent to entering that community corrections order on release?

79OFFENDER:  Yes, Your Honour.

80HIS HONOUR:  Well I, take that approval as consent.  The effect of that as I - on my calculations, Mr Collett, is that in about 10 months' time, it might be sooner, in about 10 months' time, you will be released on a two and a half year community corrections order.  And now Mr Battersby is there anything else that needs to be clarified?

81MR BATTERSBY:  Nothing from me, Your Honour.

82HIS HONOUR:  Mr Roper, anything?

83MR ROPER:  No, nothing further Your Honour.

84HIS HONOUR:  All right.  Well, I'll be seeing you again, Mr Collett, because there'll be judicial monitoring on that community corrections order and I sincerely hope that you're demonstrating some good progress by that stage.  All right, yes, we'll adjourn the court, thank you.

- - -