Director of Public Prosecutions v Collingwood
[2013] VCC 2043
•13 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01490
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY COLLINGWOOD |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2013 | |
DATE OF SENTENCE: | 13 December 2013 | |
CASE MAY BE CITED AS: | DPP v Collingwood | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2043 | |
REASONS FOR SENTENCE
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Subject: Failure to comply with a condition of a Supervision Order
Catchwords: Further sexual offence committed while on a Supervision Order
Legislation Cited:
Cases Cited: DPP v Terrick [2009] VSCA 220
Sentence: TES Four years five months’ imprisonment with a new non-parole period set of thirteen years 6 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Rose SC | OPP |
| For the Accused | Ms K. Napier for plea Mr Cini for sentence | Turnbull Lawyers |
HER HONOUR:
1 Gary Collingwood, you have come before me in very serious circumstances.
2 As revealed in the Prosecution Opening (Exhibit A), in 2001, you were sentenced in Western Australia to 13 years six months’ imprisonment for a number of offences, including eight charges of rape and three charges of indecent assault against a woman. On being granted parole, you came to Victoria, and on the basis of that series of offences, the Secretary to the Department of Justice in this State applied to this court for you to be made subject to a Supervision Order. I heard the application and, being satisfied that you posed an unacceptable risk of committing a sexual offence if you were in the community and not the subject of a Supervision Order, I granted that application.
3 As a result, from 9 August 2012, you were subject to a Supervision Order for 12 years, with strict conditions. The most important of these was that you not commit another relevant offence, that is, not commit another sexual offence. The importance of this core condition, which is attached to every Supervision Order, is reflected in its place as first in the list of core conditions under the Serious Sex Offenders (Supervision and Detention) Act. Two other conditions were attached to the Supervision Order imposed on you, and these are suggested, not core, conditions under the Act. These conditions were that you remain at your place of residence between 11 pm and 6 am, and that you not consume alcohol without permission.
4 Despite the intensive nature of your management under the Supervision Order, you demonstrated that the assessment that you posed a risk of committing a sexual offence was completely justified. Unfortunately that demonstration came at the expense of another victim.
5 In January 2013, you were living at an address in Bendigo. You were in a relationship which began after the Supervision Order commenced, and your new partner had children. I am told that initially being part of this family unit fulfilled a need for you which had never been satisfied in your childhood or since then. However, it seems that strains began to appear in the relationship, and you were unable to cope. Apparently this led you to explore dating on the internet, and you met your victim through this medium. I will not name her here, to comply with the law protecting the anonymity of sexual offence victims, but I mean her no disrespect. She has shown incredible bravery and strength, both throughout the ordeal and through the ensuing criminal process.
6 Of course, she knew nothing of your offending background, and ultimately, when she was present at your residence in January 2013, you raped her at knifepoint, threatened to kill her, taped her wrists and ankles, blindfolded her and gagged her. These facts are frighteningly similar to the facts in the offences you committed in Western Australia. Without for a minute suggesting that this was not a terrifying set of events, I do note that the victim of the crimes here was not subject to the terror for the lengthy period involving the victim in Western Australia. That is, afterwards, you realised the enormity of what you had done to her, and the consequences to yourself, and after you swallowed a large number of Temazepam tablets, your victim was able to convince you eventually to cut her loose before you collapsed, enabling her to escape and call the police. You were taken to hospital, where you remained for two days under police guard before being remanded in custody, where you have been ever since.
7 You were sentenced by His Honour Judge Maidment for this shocking offending. On 17 July 2013, you received a sentence of 13 years six months’ imprisonment with a minimum term of ten years[1].
[1]The reasons for sentence are Exhibit B.
8 As a result of this series of events, you were charged with breaching the condition of your Supervision Order not to commit a relevant offence. Because of the extremely serious nature of the breach, the Director of Public Prosecutions took over the prosecution, and ultimately you were directly indicted on this charge. You pleaded guilty to the charge, and the applicable maximum sentence for that breach is five years’ imprisonment.
9 You have also been charged on summons with three other breaches of conditions of your Supervision Order.
10
Summary Charge 2 relates to you being absent from your residence after
11 pm on 8 November 2012. As you were closely monitored via an electronic bracelet, your absence was discovered immediately, and after you were contacted by the duty manager of the region, Ms Morton, you returned home by 11.42 pm. You had apparently been at a friend’s house, and you were apparently apologetic when you spoke with Ms Morton.
11 Because you were slurring your words when you spoke with her, Ms Morton was of the view that you had consumed alcohol when no permission had been granted for you to do so and she arranged for an appointment at 9 am the following day. You attended, and a preliminary breath test was administered, producing a reading of 0.08% This is the subject of Summary Charge 3, breaching of the condition of your Supervision Order that you not consume alcohol.
12
Summary Charge 4 also relates to a breach of the condition that you not consume alcohol. After the positive reading was obtained on 9 November, a Remote Alcohol Monitoring (MEMS) Unit was installed at your home to monitor future compliance with the condition not to consume alcohol. On
31 December 2012, you attended the funeral of your sister, the only family member with whom you had contact. Apparently you had been with her when she finally succumbed to cancer of the brain. Late on the night of her funeral, you were breath-tested by the MEMS Unit and returned a reading of 0.07%. A few hours later, in the early hours of 1 January 2013, you were tested again and returned a reading of 0.022%. While it is completely understandable that you were upset, you were on notice about consuming alcohol, you had not obtained permission, and you were aware that the MEMS Unit was in your house to monitor compliance with the condition.
13 I granted summary jurisdiction for the hearing of the summary charges, and through your counsel, you pleaded guilty to these. The maximum sentence for each of the summary charges is two years’ imprisonment.
14 As I said at the outset of these remarks, these are very serious circumstances. For the system of Supervision Orders to work towards the purpose of protecting the community, offenders placed on Supervision Orders must comply with the conditions of their Order, and if they do not, the consequences must reflect that it is a court order that has been breached, and the seriousness of the breach must be reflected in the sentence. In circumstances where the breach involves further offending, the level of gravity is high. Even more so, if the further offending involves another sexual offence, especially if it is of a serious kind.
15 In your case, the prosecution submit, and your counsel did not dispute, that the breach involving the commission of a relevant offence in the circumstances I have outlined is of the utmost seriousness, and requires the court to reflect that in a stern sentence. I agree.
16 I do accept that it is not beyond contemplation that there could be a worse case of breaching a Supervision Order, and so as this is not the worst case, a sentence less than the maximum penalty should be imposed for each of the breaches.
17 Further, there are some matters which I take into account in mitigation of the high level of seriousness of your breach offending, so on that basis also, a sentence less than the maximum is warranted, but the mitigatory effect of these matters is limited in respect of the breaching offence on the indictment, because of its objective gravity.
18 The first matter is that you pleaded guilty to the breaches, and that is a matter I do take into account, even though, with a strong case against you, that was probably inevitable. I also take into account that you indicated early your intention to plead guilty.
19 Next, I accept that the pleas of guilty reflect a degree of remorse by you. Further, I accept His Honour Judge Maidment’s description that there was "a glimmer of remorse" for the offending for which he was sentencing you in your words, and in your actions, immediately after the offending when you freed your victim, and took an overdose of prescription medication, as well as in your remarks to Dr Cunningham, a psychologist who examined you for the hearing before His Honour Judge Maidment, and whose report I was also provided with (Exhibit 2). While that finding of remorse was relevant to the offences committed against the victim, I apply that degree of remorse also to the breaches for which I am sentencing you.
20 Next, even though it is not disputed that the sentences I impose for all of the breaches must also seek to deter others from breaching conditions of their Supervision Orders, and must seek to deter you from committing offences in future, even though significant prison terms imposed on you have not achieved that purpose in the past, it was submitted on your behalf that your extremely deprived background should moderate the sentence I am to impose.
21 In brief, your background is that you and your siblings were abandoned by your mother and placed in State care, where you witnessed, and yourself suffered, physical and sexual violence by those entrusted with your care, and by other children. You never knew your father. You are now aged 47 years and have a long history of drug and alcohol abuse, unstable accommodation and employment, as well as an extensive criminal record, including two other sexual offence matters apart from the breaching offence and the offences in Western Australia. In his report, Dr Cunningham[2] expressed the opinion that you suffer from the mental impairment of a Borderline Personality Disorder, precipitated by your exposure to complex trauma and abandonment during your childhood.
[2]Exhibit 2
22 I interpolate these remarks to make the observation that it seems that society is now paying, through crimes committed against your victims, for the abuse perpetrated by others on you as a child. The whole community has a responsibility to protect children from harm, and to protect future possible victims from harm caused by abused children when they become adults.
23 Returning to your situation, I was referred to a case[3] which dealt with principles that a sentencing judge should apply in cases involving an offender with a disadvantaged background. I accept that you have suffered from childhood deprivation and abuse, and that this is the likely cause of your Borderline Personality Disorder. However, I adopt the submissions made on behalf of the Director of Public Prosecutions in the case[4] to which I was referred as being entirely appropriate in your case, as follows.
[3]DPP v Terrick [2009] VSCA 220
[4]At [54]
24 You are a repeat offender of serious sexual crimes. In those circumstances, the mitigating factors flowing from your personal circumstances must be balanced against the fact that your re-offending increases your moral culpability and the risk of further offending. As I found at the time of making the Supervision Order, you pose a considerable threat to the community. His Honour Judge Maidment found that your prospects of rehabilitation are poor, and I agree. The need to protect the community becomes the most prominent purpose for sentencing you, and your background attracts correspondingly less weight as a mitigating factor, although I do not regard it as entirely spent.
25 The prosecutor submitted that an appropriate range for today’s sentence was a term of imprisonment of three and a half to four and a half years.
26 Your counsel submitted that I should have regard to the principle of totality in deciding the length of the sentence to impose on you today, and in deciding the degree to which today's sentence will be concurrent with the sentence imposed by His Honour Judge Maidment. That means, the sentence I impose and the sentence you are undergoing, taken as a whole, should reflect the whole of your offending and not be out of proportion with it.
27 I have decided that there should be significant cumulation of today’s sentence on the sentence you are undergoing because of the seriousness of the breach by relevant offending. I have decided that the breaches of conditions relating to curfew and abstinence from alcohol will attract much lower sentences than the sentence imposed on the breach charge on indictment, as they are less serious offences. However, the subsequent breach relating to consumption of alcohol will attract a higher sentence than the original charge relating to that type of breach.
28 Stand up, please.
29 On the breach charge on indictment, you are convicted and sentenced to four years two months’ imprisonment. That is the base sentence.
30 On each of the summary breach Charges 2 and 3, you are convicted and sentenced to one month imprisonment.
31 On the summary breach Charge 4, you are convicted and sentenced to two months’ imprisonment.
32 I direct that the sentences imposed on summary Charges 2 and 3, and one month of the sentence imposed on summary Charge 4 be served cumulatively on the sentence imposed on the charge on the indictment. That makes an effective sentence of four years five months’ imprisonment.
33 If you had not pleaded guilty, but had been found guilty of the breach offences after a contested hearing, the total sentence I would have imposed on all of the breach offences is five years six months’ imprisonment.
34 I direct that three years ten months of the sentence imposed today be served cumulatively on the sentence imposed on 17 July 2013 by His Honour Judge Maidment. That makes a global total effective sentence of 17 years four months’ imprisonment.
35 I propose to set a non-parole period. Having regard to the factors I have referred to in these remarks, to the global total effective sentence, and allowing for the period of about four and a half months you have already served on the sentence imposed on 17 July 2013, I fix a new single non-parole period in respect of all the sentences you are to serve and complete of 13 years six months’ imprisonment. That new non-parole period starts today.
36 For completeness, I confirm that the declaration as to pre-sentence detention made by His Honour Judge Maidment continues to apply.
37 COUNSEL: As Your Honour pleases.
38 HER HONOUR: Yes, Mr Collingwood may be removed.
39 (Prisoner removed)
40 HER HONOUR: I will adjourn then until 9 am tomorrow morning.
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