Director of Public Prosecutions v Collingwood
[2013] VCC 977
•12 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION CR-13-00832
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY JOHN COLLINGWOOD |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 17 July 2013 | |
DATE OF SENTENCE: | 12 July 2013 | |
CASE MAY BE CITED AS: | DPP v Collingwood | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 977 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Jones | |
| For the Accused | Mr C Farrington |
HIS HONOUR:
1 Gary John Collingwood you can remain seated for the time being. You have pleaded guilty to an indictment charging you with rape on 12 January of this year, charging you with false imprisonment of your victim on the same day and of making a threat to kill your victim on the same day.
2 The maximum term of imprisonment for rape is 25 years imprisonment and for each of the offences of making a threat to kill and false imprisonment the maximum term of imprisonment is ten years.
3
You have also admitted a number of prior convictions and court appearances going back to 1984. Those offences for which you appeared over those years involve offences of dishonesty, offences of violence, sexual offences. The most significant of the recent offences involved you pleading guilty in the district court of Western Australia, in Perth, to a number of offences involving rape and making a threat to kill. For that court appearance, on
22 August 2001you were sentenced to 13 years and six months imprisonment. I have been supplied by the prosecution with the sentencing remarks of His Honour Judge O'Brien of the district court of Western Australia. He had to consider the extent to which you represented a risk to the community. There is no doubt that he regarded you as a risk to the community but not one which required him, on the evidence that he had before him, to impose an indefinite sentence, which was available in Western Australia.
4 The prosecution has tendered and read in open court a summary of prosecution opening in relation to the offences to which you pleaded guilty in this court. That document was not challenged in any way and I understood from your counsel that it represented an agreed statement of facts upon which I could proceed to sentence you for these offences. I am not going to read it again but it can be summarised briefly in this way:
5 You made contact with your victim in November of last year through an online social dating site. You had further contact with her in the latter part of last year and arranged ultimately for her to meet you at your unit on the afternoon of 12 January of this year. That unit was at Kangaroo Flat. The victim arrived at your unit at about 4.30 pm and you were both seated on the couch in the living area. You began to touch her on the leg and start rubbing it. That led your victim to indicate that she was feeling tired and that she would leave. You persuaded her to stay for another half hour and she noted that the time was 5.40 pm when you made that request.
6 You then stood up and took her by the hand, leading her towards your bedroom. She stopped at the door whilst you went into the main bedroom. You asked her if she, "Wanted to do it?" She understood that to mean that you were asking her for sex. She said no and walked back into the living area to collect her bag and leave. As she was walking away from you, you placed your arm around her neck, pulling her tightly towards you so that she was leaning against your chest and with your other hand you were carrying a knife, you put it against her face, pressing it against her nose, cutting it. She asked you what you were going to do and you replied that if she did not do what you told her you would kill her.
7 That threat to kill her was repeated and when she tried to push the knife away from her face she cut her finger in the process. She was convinced, not surprisingly from your actions, that you would kill her, and no doubt the manner in which you conveyed your threat was intended to induce that fear on her behalf. You led her back to the bedroom, repeated your threat to kill her if she did not do what you told her, and she indicated that she would do whatever you wanted her to do.
8 You then stripped her naked and placed her on the floor and sat on top of her, told her to give you a head job. You placed your penis in her mouth and thrust it in and out, causing her to gag. You ejaculated into her mouth. When she tried to spit it out you made her swallow it. You then climbed off her, told her to roll on her stomach, put her hands behind her back and not move, again threatening to kill her if she did not cooperate.
9 She did as you told her. You then left the bedroom, came back, and wrapped something around her wrists that she took to be tape. That seems to have caused her a nasty injury to the wrist. You put a blindfold over her eyes and you gagged her so that she would not scream. At this point she formed the view that either she was going to die or you were going to die.
10 As you were with her while she was lying on the bed you kept repeating to yourself, "Oh fuck, what have I done?" The gag loosened and she asked if she could sit up. You allowed her to do that. When she sat up she was still naked and you bound her ankles together with red electrical tape. While she was sitting up you then took the knife and left the room, returning a number of times. She begged you to let her go. You told her that you could not do that and that you had to die first.
11 You returned to the bedroom, ultimately, with three packets of tablets, counted them in front of her, telling her that there were 30 and told her that they were Temazepam. You apparently sent a text message from your mobile telephone and then swallowed all of the tablets that you had shown her. You told her that you did not want to die in the unit and she was able to convince you to untie her so that she could drive you somewhere else. You did cut her loose using a box cutter that you had in your possession.
12 She then got dressed and by the time she had done that you were gagging and starting to sway. You ultimately collapsed on the bed in your unit and she was able to make good her escape and call the police. Indeed when the police arrived you were still lying on the bed in your unit, apparently unconscious, and you were taken to hospital as was she.
13 Ultimately you were interviewed about these matters by police. You agreed that the acts occurred but claimed that they were consensual. At that stage, to put it mildly, you were very uncooperative with the police and it seems you assaulted one or more police officers. Nevertheless, despite your lack of cooperation at that time, you entered pleas to these charges at the committal proceeding and it is to your credit that you did so.
14 These offences, of course, are extremely serious. It is apparent that you realised towards the end of your offending conduct on this occasion just what you had done, that you were in serious trouble and that it was inevitable you would be going back to prison. It seems it was on that basis that you took the tablets and desisted from your frightening and aggressive conduct towards your victim.
15 It was recognised, by your counsel, that these were very serious offences. I do not think that you yourself would dissent from that categorisation. Of course made the more serious because you engaged in offending conduct of a broadly similar nature on the previous occasion for which you received 13 and a half years imprisonment from the district court in New South Wales. I think it is fair and right that I should say that that sentence arose out of a very sustained period of sexual offending towards your victim over a significant period of time in which you maintained the threat to kill her and that even without prior convictions of that kind the sentence of 13 years six months for that offending was entirely justified. That was not your first sexual offence but it was by far the most serious sexual offence that you had committed up to that point.
16 The prosecution also relied upon a victim impact statement which was read to the court. The written victim impact statement, which was read, was provided to me and is Exhibit C. It was accompanied by a number of other documents. Mr Farrington raised objection to the production of those documents as being outside the terms of the section in the Sentencing Act which permitted victim impact statements to be provided to the court. I think that these accompanied documents are of a nature which provide some professional support for the proposition that your victim has suffered great trauma as a result of your offending conduct. Although she is receiving counselling there is no doubt, it seems to me, that she will continue to suffer profoundly, emotionally, psychiatrically, from your offending conduct.
17 I do not think that I need go any further in identifying what seems to me to be relevant from the material provided. I do not draw any further inferences from that material beyond the general effect of the victim impact statement which was actually read by the victim to the court, beyond, as I say, drawing from the supporting material that there has been a profound impact upon her life and that that impact is likely to continue for a very considerable period of time if not for the rest of her life. I think that you will probably appreciate that that kind of affect was inevitable and that anybody who had to suffer the aggression that you showed, and the fear that you intended to instil, was bound to suffer very considerably psychologically and emotionally. That is something that I will have to take into account in imposing sentence upon you.
18 Turning to matters personal to you, your counsel provided me with a report from Dr Cunningham, a forensic psychologist, dated 1 July 2013, which is Exhibit 1. That is, I think, a very helpful document on a number of bases. Firstly it gives a useful history of your childhood upbringing and your work history, such as it is. As your counsel submitted, your childhood was a tragedy. You had the most emotionally deprived, physically deprived, and unfortunate childhood that can reasonably be imagined. You were essentially abandoned to the care of the state from a very early age and such attempts that were made by others to draw you out of children's homes and wardship were spurned by the state.
19 I do not need to go into the reasons for all of that, but there is no doubt that anybody who had the kind of upbringing that you had was bound to be affected by that for life. The emotional deprivation, I have no doubt at all, has had an impact upon you from which you will not recover. All of that of course does not excuse your conduct. It does perhaps go some way to explaining it. Your counsel drew my attention, helpfully, to the decision of the Court of Appeal in this state in the matter of DPP v Terrick & Ors, which is reported at [2009] VSCA 220, in which the court had to consider the effect of the kind of deprivation in childhood and so on that you suffered from. That, of course, has to be balanced against other sentencing considerations. It has resulted, it would seem, at least contributed to, what Mr Cunningham identified as a psychiatric impairment, a mental impairment which is given the label borderline personality disorder.
20 Mr Cunningham spelt out what the symptoms of that were, so far as you are concerned. He says on p.3 of his report:
"Mr Collingwood evidences a poorly developed self image characterised by feeling of emptiness and dissociative states under stress, instability and goals, aspiration and values, compromised ability to recognise the feelings and needs of others, unstable close relationships marked by mistrust and preoccupation of abandonment, unstable emotional experiences and frequent mood changes that are out of proportion to the circumstances, anxiousness and panic, fears of rejection and separation, depressive symptoms in the form of feelings of inferior self worth and suicidal behaviour, impulsivity characterised by and orientated towards immediate gratification driven by current thoughts and feelings without regard for past learning or consideration of future consequences, risk taking and hostility characterised by frequent anger and hostility."
21 He goes on to say that you present with symptoms of institutionalisation and that you stated to him that you needed to be incarcerated in a controlled environment and that you cannot cope living outside of a controlled environment.
22 No doubt that institutionalisation has arisen from the long period of incarceration which was imposed upon you in Western Australia and there is no doubt my duty is to impose another substantial term of imprisonment upon you which will add to that institutionalisation.
23 Despite all of those symptoms, Dr Cunningham points out that you have had some relationships with females. One of those produced a daughter who, as I understand it, is now 23 years of age. You apparently think of her a great deal. The relationship with the mother of that child ended when you were incarcerated. A subsequent relationship ended when you were incarcerated again and shortly before this series of offences was committed, you had been in a relationship with a lady who had two sons. Apparently you were having some relationship difficulties with her at the time of these offences.
24 Dr Cunningham, of course, approaches the mental impairments from which you suffer, or mental impairment from which you suffer, on the basis of a health professional and identifies, for me, what kind of treatment you would require to assist you in dealing with the borderline personality as well as symptoms of institutionalisation. He expresses the opinion that you would require long term one to one psychological intervention to manage the mental impairment or impairments from which you suffer. Sadly I think it is unlikely that that kind of intervention will be available to you in the prison system. Save that there are some prisons which now specialise in dealing with people such as yourself. There is a prison by the name of Marngoneet, I'm not sure whether I get the pronunciation of that correct, Marngoneet, which is one of only three in the world that is set up to deal with people with specialist problems such as yours. They have a very strict regime but one which may be, I say may be, available to you if you seek out that option whilst you are serving your sentence.
25 I was supplied by your counsel with a letter form Mr Andrew Wilson of the Salvation Army. He is a chaplain. He says that he completed the positive lifestyle program with you and he indicates that you are genuinely remorseful and you are very upset at letting him down in having re-offended in the way that you have. I note also that you have completed a sex offender's program and whilst it may well be that you approach that with the same vigour and the same commitment as you did the positive lifestyle program you apparently are mystified, or at least concerned that it did not prevent you from re-offending on this occasion.
26 Other programs may be available to you of a similar nature and it will be up to you very much to determine the extent of which you commit to those programs in the time that you are imprisoned. If you do then it will help your prospects of rehabilitation and will ultimately assist in your application for parole, when the time comes for that to be considered.
27 I note that the risks of your re-offending were recognised by this court last August, this court having to consider whether you should be placed on an extended supervision order because of a substantial risk that you may re-offend. The court was persuaded that you represented that kind of risk and imposed an extended supervision order. One of the conditions, as I understand it, being that you wore an electronically monitored bracelet. As I understand it you were wearing that bracelet at the time that these offences were committed. The unfortunate fact is that that proceeding will have brought home to you that others recognised a real risk that you would re-offend. Despite that you were not able to avoid re-offending and when the temptation arose you took it. I think it is reasonable to infer that there had been some degree of planning in that you armed yourself with a knife, apparently prior to inviting your victim into the bedroom of your home.
28 It is urged upon me that I should give you credit not just for what is known as the utilitarian value of your plea, namely saving the court, state, the cost and inconvenience, time involved in the trial, but more importantly sparing your victim the indignity of having to give evidence about these matters and to be cross-examined at a contested hearing. There is no doubt that you are entitled to a discount for that plea that you made at the committal hearing.
29 You have expressed remorse, apparently in a letter, or note that you have written, but you have also expressed remorse to Dr Cunningham. As I pointed out to your counsel during the course of your hearing, it seems that there was the first glimmer of remorse during the events of 12 January of this year, when you began to repeat, "Oh fuck, what have I done?" Whilst your victim was still lying on the bed blindfolded and gagged. Perhaps your taking of the tablets was further evidence that even at that early stage there were glimmers or remorse for what you had done, although clearly a recognition on your behalf that there was an inevitability about you going back to gaol.
30 I am inclined to accept that you are remorseful. There is no doubt that you are a damaged personality and it is difficult for me to assess what remorse really means to you in those circumstances, but nevertheless I think you are entitled to credit for exhibiting signs of remorse.
31 Your counsel drew my attention to the Court of Appeal decision in the case of R v Phillips reported at [2012] VSCA 140 and to the Court of Appeal decision of R v Gill, which is [2010] VSCA 67. Every case has to be determined on its own facts and I have to look at the facts special to this particular case in determining what is an appropriate sentence.
32 There is one other thing that I should mention, in addition to the diagnosis by Dr Cunningham of borderline personality disorder, he notes that you were at an earlier stage in your life involved in a serious motor vehicle accident which resulted in a head injury and you have continued to suffer symptoms of headaches from that. He posits the question as to whether you suffer from an acquired brain injury. That has apparently not been investigated and it may be that that is a further explanation. But on the available evidence it cannot be put forward as an excuse for your conduct.
33 The prosecution, on my invitation, put forward a range of sentences within which, on their submission, I should be imposing sentence. The range that they put forward was a total effective sentence of between 12 years and 15 years with a non parole period of between eight years and ten years. Your counsel I think, again, realistically, recognised that that was an appropriate submission on behalf of the prosecution, but urged me, as he was right to do, that I needed to look at the particular facts of this case in determining the seriousness of your offending conduct and placing it in proper proportion.
34 It was accepted on both sides that for the offence of rape, Charge 1, I had to sentence you as a serious sex offender and for the offence of making threats to kill I am required to sentence you as a serious violent offender, having regard to your previous criminal record. That then imposes an obligation on me to regard the principle of public protection, that is protecting others from conduct of this kind, from you essentially, as a significant, the most significant, sentencing consideration. In order to enable the court to achieve that it is open to the court, in certain circumstances, to impose a disproportionately high sentence. The prosecution did not submit in this case that that was necessary and it seems to me that the sentences that are available, having regard to the maximum sentences for each of these offences, enables me to impose an appropriate sentence without resort to that power, to impose a disproportionately high sentence.
35 Nevertheless, clearly these offences do require me to look to protection of the public. I am required, in addition; to impose a sentence that punishes you appropriately for your offending, that expresses the denunciation of this court for offending conduct o this kind; deters you from committing other offences of this kind in the future; and significantly deters others from committing offences of this kind. I am also, despite all of those principles that I must have regard to, required to pass a sentence which facilitates your rehabilitation to the extent that it is reasonable to do so, in regard to these other sentencing considerations.
36 I cannot look upon your prospects of rehabilitation at this stage as anything other than poor. It may be in your hands ultimately to change that, during the period of imprisonment that I am about to impose. As I have already pointed out to you, there are options within the prison system that may be available to you and it will be up to you to take whatever options are made available to you when they arise. Doing the best I can to balance all of those considerations and balance the impact this has had upon your victim. I am ready to pass sentence upon you, would you please stand?
37 Gary John Collingwood, on Charge 1 of rape I sentence you to imprisonment for ten years. On Charge 2 of false imprisonment I sentence you to imprisonment of two and a half years. On Charge 3 of making a threat to kill I sentence you to imprisonment for six years. The sentence on Charge 1 is to be regarded as the base and I order that three years of the sentence on Charge 3 and six months of the sentence on Charge 2 be served cumulatively with one another and with the sentence that I have imposed on Charge 1. That makes a total effective sentence of 13 years and six months and I order that you serve a period of ten years before you become eligible for parole.
38 But for your pleas of guilty I would have sentenced you to a total effective sentence of 17 years imprisonment with a non parole period of 13 years. I declare that I have sentenced you as a serious sex offender on Charge 1 and as a serious violent offender on Charge 3. I also declare that pre-sentence detention of - I think it is 185 days now, is that correct? Are to be reckoned as time served on the sentence that I have just imposed, and deducted administratively from the time you will actually have to serve and I order that that fact be noted in the records of the court.
39
I am required to order that you be subject to the reporting obligations under the Sex Offenders Registration Act for life and you will be provided with a document which spells out those obligations to you. I will give
Mr Farrington the opportunity of ensuring that you are aware of those obligations.
40 I make the disposal order in the terms of the draft that has been provided to me and the order for retention of forensic sample that has also been provided to me in draft form. Are there any other orders that I need make gentlemen? No? All right, you can take a seat for the moment Mr Collingwood.
41 Mr Farrington if you wish to accompany Mr Travers when he goes up. Yes, just sign the sentencing order so that you can take it with you. Yes, I am not sure whether I actually said that you would be convicted on each of these offences Mr Collingwood, but if I failed to say that, you are convicted in relation to each of these offences. Thank you Mr Travers. Thank you, you can remove the prisoner. I just want to say this, thank you Mr Farrington for your assistance in this matter.
42 MR FARRINGTON: As Your Honour pleases.
43 HIS HONOUR: I'd just like to say this also, that one could not help but admire the courage of Ms Harrison, not just for attending this court on each of the days when this matter has come before me, but for the manner in which you went into the witness box and read your victim impact statement. Whilst I know you have assistance and support I have also the feeling that with that same degree of courage you may be able to recover from this offence. I wish you well in your endeavour in that regard. Yes, thank you, we'll adjourn for the time being.
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