Director of Public Prosecutions v Collier

[2017] VCC 135

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-01779

DIRECTOR OF PUBLIC PROSECUTIONS

v

RIKKY COLLIER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	24 February 2017
CASE MAY BE CITED AS:	DPP v Collier
MEDIUM NEUTRAL CITATION:	[2017] VCC 135

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Ms C. Woodward

Pages 1 - 5

 

 

HIS HONOUR: 

1Rikky Collier, you have pleaded guilty to two charges of sexual penetration of a child under the age of 16; and one Commonwealth matter - abusing a carriage service in an offensive way.  Those crimes carry maximum penalties of ten years and three years respectively. 

2You are now 20 years of age and still a young person.  At the commencement of this offending, you were 17 years of age and therefore would have been within the jurisdiction of the Children's Court and I take that into account. 

3You pleaded guilty at the earlier reasonable opportunity.  When contacted and spoken to by police, your record of interview was confessional.  I accept that you indicated appropriate remorse and indeed, with reference to a letter from your mother, I accept that that is the case. 

4You must also get the utilitarian benefit of that plea of guilty.  You are not an abuser of alcohol or drugs and accordingly, I have real confidence in your prospects for rehabilitation. 

5The circumstances of the offending were that between July 2013 and December 2014, you were in a relationship with a girl who, on my calculation, was some two years and four months younger than you.  You had met on her 14th birthday.  Accordingly, the offending takes place while she is under the age of 16 and whilst you are between the ages of 17 and 18, had you been four months younger or her four months older, as I understand the legislation, there would have been no offence committed.

6But in any event, the sexual activity took place on a number of occasions including digital penetration and penile penetration.  The two charges are representative and obviously, I understand what that means. 

7This is a situation where the detection, as I understand it, was brought about because you foolishly - feeling somewhat bitter about her having cheated on you as you perceived it - sent an intimate image of her breasts to her mother and brother.  It would seem fairly clear had you not done that that this matter would never have come to light.  I do not propose to go through the Crown opening in detail.  A copy has been tendered and can be read by any person with a genuine interest in the matter.

8What is important here is that whilst it is criminal offending, it is in the concept of a boyfriend-girlfriend relationship.  There is nothing predatory about it.  Having looked at you and having read the material, I take the view that you are probably of immature - psychologically anyway - years. 

9In any event, it is clear from the material including a report from Mr Jeremy Parker, that you are a low risk of reoffending.  Accordingly, specific deterrence play no part in this.  There must be an aspect of general deterrence because obviously it remains a crime and it must be a degree of punishment.  I have taken into account the victim impact statement, having read that.  I can say no more in that regard.

10I have indicated there is a report from Mr Jeremy Parker which is tendered as well as a reference from your mother and they indicate a young person with no prior convictions, which in this situation is very important, and no matters pending.  You had a fractured childhood and have grown up without a male role model and all those factors would have seemed to play a part in all this. 

11Bearing in mind that I do not regard you as at all predatory and bearing in mind as I have indicated already, it is a boyfriend-girlfriend relationship, I think that the appropriate disposition is a community corrections order.  As I indicated to counsel, the system will not allow me to do it for a Commonwealth and a State matter, so accordingly, what I am going to do is give a CCO on the State matters and a moderate fine, bearing in mind you are unemployed, on the Commonwealth matters. 

12I have had you assessed and you have been found to be suitable.  In all the circumstances of this offending, I think, bearing in mind your youth and the perception that people can have at a later time of such offending, I think that in your situation, I am persuaded that a non-conviction disposition whilst perhaps lenient is nevertheless appropriate.

13The prospects of your rehabilitation should be good and as I have said, the risk of you reoffending is low. 

14Taking all those matters into account, on the charges of sexual penetration, you are sentenced to be placed, if you agree, on a community corrections order that will be without conviction. 

15It will be for a period of 18 months.  It will involve 100 work hours.  It will involve treatment for mental health issues and it will be with supervision.  In all the circumstances, I do not believe that it is necessary for you to undergo the Sex Offenders Program and the order will also contain the provision that hours spent in mental health treatment can be set against the work hours that I have imposed. 

16On the Commonwealth charge, without conviction, you are sentenced to pay a fine of $250.  I will not put a stay on that and you can just simply turn that into work hours at a later time. 

17MR MOORE:  As Your Honour pleases.

18HIS HONOUR:  Anything else?

19MR MOORE:  No.

20MS WOODWARD:  Yes, Your Honour.  If I just might speak to my friend?

21HIS HONOUR:  Yes.

22MS WOODWARD:  I apologise, Your Honour.  No disrespect.  I just confirmed with my friend whether it is possible to impose a non-conviction when imposing a fine with a1 Commonwealth matter.  I do not want to - wish to lead Your Honour into error.  Just wanted to confirm that.  I understand ‑ ‑ ‑ 

23HIS HONOUR:  I have had this before.  There are provisions about it and I believe it can be done.  I know there are some that take the view that it cannot and those submissions were put in a decision where the head of the - the president of the Leongatha RSL had not been to war at all.  He used to wander around with battle medals.  The magistrate was told that he could not do it and did not.  He came to me on appeal and I did. 

24MS WOODWARD:  As Your Honour pleases.

25HIS HONOUR:  So I can do it.  But I think this is a situation where bearing in mind, I have had these matters to look at a later time as someone reviewing them, I think that it is an exceptional situation where I am prepared to do it without conviction. 

26MS WOODWARD:  As Your Honour pleases.

27HIS HONOUR:  That ruling is subject to finding authority to support it other than my own.  All right.  Yes, all right.  If he was to sign the order then we can end all this.

28MS WOODWARD:  May I please ‑ ‑ ‑ 

29HIS HONOUR:  Yes, of course. 

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

31All right.  The order is made and that is the end of the matter.  All right?  So do no breach that.  All right?   You have got to do the 100 hours, get it done.  I do not want you to have to keep being brought back.  All right? 

32OFFENDER:  Yes.

33HIS HONOUR:  And take care of yourself.  All right.  Thank you, counsel, for that.

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