Director of Public Prosecutions v Collie

[2016] VCC 972

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00208

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAURICE COLLIE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2016
DATE OF SENTENCE:	8 July 2016
CASE MAY BE CITED AS:	DPP v Collie
MEDIUM NEUTRAL CITATION:	[2016] VCC 972

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott	Office of Public Prosecutions
For the Accused	Ms C. Nicholson	MLK Lawyers

Pages 1 - 10

 

 

HIS HONOUR: 

1Maurice Collie, in October 2014 you were working as a carnival ride assistant at the Shepparton Show.

2OFFENDER:  Yes, Your Honour.

3HIS HONOUR:  I will just read out some reasons.  You can just listen carefully.  I am glad that you are listening.  Sometimes I might say things that you will not follow, but your lawyer will fix them up, all right?

4OFFENDER:  Yep.

5HIS HONOUR:  But listen as best you can.  Thanks.  So you were working at the Show there in Shepparton.  You met the complainant and the two of you became friendly and kissed.  She was 15 and you were 22.  You asked to stay at her place that night.  However, her mother refused.

6About two weeks on from there, you met up again and exchanged flirty text messages.  On 21 October 2014 you went to her house after her parents had gone to bed.  You were let in and slept the night in her bed.  You had sex with her twice.  Her mother was shocked to see you in the house the next morning.  The complainant denied that you had spent the night there.  Rather, she said you had arrived early that morning.  Later, she revealed what had happened.  The complainant, like you, has an intellectual disability.

7You were not interviewed about this until almost a year to the day later, on 20 October 2015.  That was as a consequence of you moving with the carnival interstate, and ultimately to Mildura.

8The complainant was particularly vulnerable, but that said, this was not offending at the serious end of the scale.  Far from it.  The complainant's mother has been significantly affected, as evidenced in her victim impact statement.  She is now hyper-vigilant to protect her daughter.

9I will outline your personal circumstances shortly, but it has to be noted that you have been in trouble too often in the past.  That includes a relevant prior matter in 2007, when you were placed on a 12 month good behaviour bond for an indecent act with a child under 16.  You were just 15 at the time you were sentenced at the Children's Court, and only 14 at the time of the offending.  I do not ignore this, but I do not overstate its importance.  It is now nearly ten years ago, and you were a child, and the Children's Court imposed a good behaviour bond.

10Your other criminal history is concerning.  You have undergone a six month sentence of late, and been in custody on remand and undergoing sentence since 21 October 2015.  There have been 78 days on remand that can be attributed to these offences.

11You are still young.  You turned 25 at the beginning of this year.  You have an intellectual disability.  I have received a document from the Department of Health and Human Services, being a statement of intellectual disability made pursuant to the Disabilities Act 2006.  You have been placed on justice plans in the past.

12As our High Court in the case of Muldrock made plain, an intellectual disability is always a relevant sentencing consideration.  It has the effect of lowering your moral culpability, so the court said, and I have come to the conclusion that your intellectual disability does significant lower your moral culpability in this case.

13It means also that you are not someone that I should use as an example to others.  So I will significantly reduce the weight to be given to general deterrence, which is normally a sentencing consideration of great weight in cases like this.

14It also means that the effect of specific deterrence, or deterrence just to you, will be less, and thus I will not give as much weight to that consideration as I might otherwise have done.  However, I also say that specific deterrence does not play a large role in this case in any event.

15The Sentencing Act requires me to establish conditions that will facilitate or help your rehabilitation.  A gaol term will not do that.  A community corrections order is more likely to help you with rehabilitation, but there are risks.  I had a justice plan prepared, and that has been very helpful to me.

16You will be case managed, with referrals to appropriate agencies, in particular DFAT, for help, because you are a person with a high risk of reoffending.  I just pause there for a moment to say, cooperate with that program.

17OFFENDER:  Yes, Your Honour.

18HIS HONOUR:  The community corrections assessment was not as positive.  However, I think you can work with Corrections.  In fact, you will have to cooperate with them, in order to get some help with your drug use and your alcohol abuse.

19I have not spoken of your family upbringing in any detail, but the key evidence I heard in this plea was from your father.  You and he have re-established a good or better relationship of late.  He is willing to give you very significant support.  He will have you live in his home in Bendigo.  He will get you involved in his work.  He will take you to the first lot of appointments, and he will monitor your behaviour and your risk of falling back into drug use.  In short, Mr Collie, you should not let him down.

20You were born and brought up in the Wodonga area.  Your father is or has been an interstate truck driver.  He has been a good influence on you.  Your mother not so.  She was abusive, and you ended up in state care for a period.

21Your paternal grandparents were very important in looking after you.  You went to special schools, and ultimately to a high school.  You gained some work after school with your father, but from an early working age you set about working in carnivals, and did that and other like jobs in a variety of locations in Victoria and New South Wales.

22You have a family history of bowel cancer, and this must be monitored more so than you are at the moment.  Attend to that.  Your binge drinking and use of cannabis and ice has seen you get into significant trouble.  It just has to come to an end.

23The opinion of the expert forensic psychiatrist Dr Sullivan was that you have no mental disorders.  In particular, nothing of concern with respect to sexual offending and risk.  But that said, do the programs that the Department of Health and Human Services will direct you to.

24In Dr Sullivan's opinion, you need help with drug and alcohol abuse, and as should be plain to you, I agree with that.

25The sentencing law in this state has altered of late.  Longer community corrections order are now permitted.  However also, there is a greater recognition of the value of community corrections order to rehabilitate, and at the same time, the plainly obvious recognition that gaol does not facilitate reform.  On the contrary.

26You have been in custody for near on nine months or so.  It is your first time in gaol.  It has been hard, and you displayed aggression in the last month or so.  In my view, all sentencing considerations are well met by a community corrections order, together with the gaol that you have already served.  There is no need for you to serve any more.

27The community corrections order need not be too long, and does not require the added punishment aspect of unpaid community work.  There is no need for any cumulation between the two offences.

28In respect of Charge 1, I sentence you to 75 days in prison; Charge 2, I sentence you to 75 days in prison.  These sentences will run concurrently, so the total term is 75 days.

29In addition to that, you are placed on a 12 month community corrections order.  The conditions of that are that you comply with a justice plan.  In addition, that you undergo treatment and assessment for drug abuse and dependency; treatment and assessment for alcohol abuse and dependency; and that you cooperate and do any program that might address factors relating to your offending behaviour.

30I am not going to require you to be under the supervision of Community Corrections.  You will be case managed carefully by the Department of Health and Human Services and the disability folk, and they are the right ones for you.

31But I will ask you to come back here in about three months' time, just to see how you are going.

32OFFENDER:  Yes, Your Honour.

33HIS HONOUR:  So you come back to a court.  Probably it would be suitable if you go to Bendigo and I can just see you on the screen, wherever I am.  And I might be here or I might be in Ballarat; I am not sure.  That will occur on 14 October.  All right, so it is about three months from now.  It is early, but we will just see if things are settled.

34OFFENDER:  Yes.

35HIS HONOUR:  All right.  Pursuant to provisions of the Sentencing Act, what has been calculated is, you have done 78 days that can be reckoned as attributable to this offence.  That reckoning having been done, I declare that you have done 78 days of the sentence I have just imposed.  So you have done all of it in a couple of days.  And I will ensure that the declaration that I have just made is entered into the records of the court so the prison people are left in no doubt you have done it all.  Do you understand?

36OFFENDER:  Yes, Your Honour.

37HIS HONOUR:  It is obvious, I hope, that I have given significant weight to your early plea of guilty, which meant the complainant did not have to give evidence.  To make that explicit to you, had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of ten months' imprisonment and a two year community corrections order.  All right?

38There is one other thing that I have to do, reluctantly.  There is a sex offender's requirement.  Registration requirement, Ms Piggott?

39MS PIGGOTT:  There is, Your Honour.  I forwarded to the court some outline of how I'd calculated.

40HIS HONOUR:  Do you agree with it, Ms Nicholson?

41MS NICHOLSON:  Yes, Your Honour.

42HIS HONOUR:  So it is mandatory for life.

43MS PIGGOTT:  It's for life, yes, Your Honour.

44HIS HONOUR:  All right.

45MS PIGGOTT:  Sorry, there is also the application for a forensic sample, and I have the ‑ ‑ ‑

46HIS HONOUR:  Yes, I will grant that as well.

47MS PIGGOTT:  Thank you, Your Honour.

48HIS HONOUR:  So there is one thing that we will get through straightforwardly.  The prosecution have applied that you give a forensic sample, a scraping from your mouth, and from that they will get your DNA and keep it on a database.  I have considered that application and I grant it.  The reason I do that is because the offending is serious.  You have prior convictions, and I think the granting of that order is in the public interest.

49How that happens is that there is a window that will open up in 28 days.  So 28 days from now, the clock starts again.  And it goes for another 28 days.  In that second 28 days, you have got to get to the police station and have that DNA scraping done.  Hopefully someone will help you through all of this.  That can be a police station in Bendigo, I think.  Do you understand that?

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR:  All right.  So I will sign that order.  The next thing I have to do, and this is where it is more reluctant, I do not hesitate to say, because I think all the evidence points out to me that you are not a danger to the sexual safety of any member of the community.  You are a 22-year-old intellectually disabled man who had a night of sexual encounter with a 15-year-old girl.  That is unlawful because she was 15, not 16.

52But as a consequence of the law that the parliament of our state has imposed, I have no choice but to require you to be registered on the Sex Offenders Register, and to remain on that register for life.  Now, I will sign that order.

53The consequences of that are quite serious for you, and I can only talk of one side of them.  And the consequence that I will talk about is, if you do not comply with what you have to do, then you will be in significant trouble.  So you have got to work with the police officer who, to be frank, would be better off doing other work than looking after you for sex offending problems, but that is what has to happen.

54But you have got to help that police officer with everything about you.  If you a get a car, registration.  More importantly, if you have got a phone, what the phone number is.  If you are on the internet, what your internet connections are.  And you might have a lot.  You might have internet connections, you play computer games, and you might have an internet computer game name that you have.  I hope you are following this, because it does not make a lot of sense to me, but this is how it works.  You have got to tell them everything about what you are doing on the internet.  Do you understand that?

55OFFENDER:  Yes.

56HIS HONOUR:  And you have got to keep them up-to-date.  You have got to tell them what job you have got.  If you get a tattoo, you have to tell them about that.  On and on it goes.  Any muck-up, you are in trouble.  All right.  So that is required.

57The other consequences are that you are on the register, and heaven knows what that will mean for someone with limited employment opportunities generally, to get appropriate work.  But I do not make the laws, I am just compelled to enforce them.  And as it is clear enough, this is not a case that I think there should be an order requiring you to be on the Sex Offenders Register for life, but no choice.  I will sign the documents required for that in due course.  I will sign the community corrections order documents, and so too will Mr Collie, and the matter will come to an end.

58You do have to go with the people downstairs, and they will check that there is nothing else that is holding you in custody, and if that is the case they will release you, and hopefully that will be done before too long.

59I think the police officer had discerned from what I have said that Mr Collie is here from Bendigo.  He is parked outside.  Quick as you can.

60PRISON OFFICER:  As soon as we get the paperwork, Your Honour, I will expedite the matter.

61HIS HONOUR:  There is some document in the body of this pages and pages and pages of things that are given to Mr Collie with his capacity, that set out the sex offenders' registration.  He has to sign part of that.  Can you take him to that and get him to sign it?  Effectively, I have signed that I have given it to him, and he signs that he has got them.  They do not work on transcript.

62There is another document, just wait there.  This is the community corrections order.  I will just read it out to him.  Bear with us, Ms Nicholson.

63The conditions that I am about to read out apply to everyone on a community corrections order, so they apply to you.  You must not commit another offence for which you could be imprisoned during the time the order is in force, all right?  So anything you can think of, virtually, is punishable by imprisonment, will breach this order.

64You must comply with any obligations or requirements under the Sentencing Regulations.  They will need to take a photograph of you just to know who you are, so you have got to cooperate with all that process.  You must report to and receive visits from the Office of Corrections.  You must let the Community Corrections officer know within two clear working days if you change your address or your job.  You must not leave Victoria without getting permission to do so.  That is over the border, for anything.  You must obey all lawful instructions and directions from them.

65Now, the conditions that apply just to you, special for you, are:  You must undergo assessment and treatment for drug abuse; must undergo assessment and treatment for alcohol abuse.  You must attend for review on 14 October 2016, 9.30.  That is to see me.  It says at Melbourne County Court, but you can be beamed in from wherever you are in Bendigo or whatever.  Do you understand?

66OFFENDER:  Yes, Your Honour.

67HIS HONOUR:  And you must participate in the services specified in the justice plan.  Now, the other thing is, you have got to attend at a Community Corrections Centre.  It says here Melton Community Corrections.  You are going to be living in Bendigo, aren't you?  Mr Collie Senior, whereabouts is the place that he is going to be living?

68VOICE (from the body of the court):  26 Hammond Street, Bendigo.  Long Gully.

69HIS HONOUR:  Yes.  Well Bendigo would be much better.

70VOICE:  Yes.

71HIS HONOUR:  We are going to have to do it again, to get the right address.  So the Bendigo Community Corrections Centre.  You have got to get down there within two clear working days from today.  So Monday or Tuesday next week, you have got to go down and report in.  We will just take a moment to get that right.  Is there anything else required, Ms Piggott?

72MS PIGGOTT:  No, Your Honour.

73HIS HONOUR:  Thank you. 

(At this stage the court proceeded with another matter.)

74Ms Nicholson, I will just hand you this for you to get him to sign as well.  Thank you.  That is signed.  I will sign the order.  It will be sent to Corrections as soon as it is available, and they can get to work on seeing whether he can be released straight away.

75The other document I have is a signed acknowledgement that he got a notice of reporting obligations, and that will be sent to the chief commissioner.  Unfortunately, my remarks will not be sent to anyone.

76Mr Collie, you have to go with the Corrections people.  I am not sure if your lawyer can get down there; she has not get a card or something.  And hopefully in a short time, you will be released and your father can take you back to Bendigo.

77I thank counsel for their very considerable assistance in this matter.  Mr Collie can be taken.  Thank you.

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