Director of Public Prosecutions v Collins
[2014] VCC 931
•18 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02322
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOEL COLLINS |
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JUDGE: | Her Honour Judge Wilmoth | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 June 2014 | |
DATE OF SENTENCE: | 18 June 2014 | |
CASE MAY BE CITED AS: | DPP v Collins | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 931 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty to aggravated burglary x 1, two co-accused; one co-accused was partner of victim – alcohol fuelled offence; culpability less serious than co-accused; 23 years old at time of offence ; mental health and drug issues.
Sentence: With conviction 12 month adjourned undertaking.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Albert | OPP |
| For the Accused | Ms J Clark | Chris McLennan & Associates |
HER HONOUR:
Joel Collins, you have pleaded guilty to one charge of aggravated burglary. The maximum penalty for this offence is 25 years imprisonment.
1 The offence occurred on 19 September 2012 at a house in Heidelberg occupied by Brenton Hopkins. You had spent several hours drinking with the co-accused, Francis Stewart, in his nearby house and with Joshua Yates and the female victim who was and is Stewart’s girlfriend.
2 She had left the house and gone to visit Hopkins and had remained there for several hours.
3 Soon after midnight, Stewart went to find her and bring her home and you went with him. You banged on the door and kicked it and Stewart shouted abuse at the victim.
4 You were told to go away and, after Stewart directed further abuse towards the victim, you left.
5 A neighbour called the police and, before they arrived, the three of you returned in the car.
6 You and Yates went to the back of the house where you reached through a window and unlocked the back door. The two of you entered the house and Mr Yates told Hopkins he was going to kill him.
7 Hopkins ran through the house and ran out the front door, whereupon Stewart entered the house via the open front door.
8 In the house the victim told you all to get out and she hit Yates and Stewart, pushing Yates towards the front door. He and Stewart both hit her, causing her nose to bleed and knocking her against a wall and to the ground. You told the other two to take it easy because the police would be coming.
9 Indeed, another neighbour had also called the police and they arrived, flagged down by Hopkins who was in the street. They arrested Yates and Stewart and you walked away from the location and returned to Stewart's house where you were arrested a few hours later.
10 When you were interviewed by the police, you told them that on each visit to the house, you drove the car for Stewart as he wanted to find out whether the victim was coming home or not.
11 You told the police that at the rear of the house you saw, through a window, Hopkins armed with a piece of wood and it was then that you entered the house, only then forming the intent to confront Hopkins, but not the victim.
12 Taking into account those circumstances, your culpability is considerably less than that of the other co-accused, arguably at the lowest end of the range of seriousness.
13 Initially, each of you pleaded guilty to the charge of aggravated burglary and Yates and Stewart also pleaded guilty to intentionally causing injury, but later, you all changed your pleas and the matter was to go to trial on 24 February, this year.
14 On 25 February, your matter resolved into a plea to the charge of aggravated burglary a few days after the other co-accused also pleaded guilty to the same charge, as well as recklessly causing injury.
15 The result was that you ultimately pleaded guilty to the same charge you had been facing since the committal mention and you did so at a very late stage.
16 Accordingly, you are entitled to a discount on your sentence, but a lesser discount than that owed to the co-accused.
17 Because of the circumstances of the initial plea, followed by a change of plea and the case being set down for trial, there was a considerable delay, but that is not to be attributed to any one party, and it is taken into account as meaning the case was hanging over your head for a considerable time. Those are matters I take into account, as well as the fact that your plea is an indication of remorse.
18 Your personal circumstances are these: that you were still a young man at the age of 25, and you were 23 at the time of the offences.
19 When you were a child, aged four, living in the Philippines with your parents, they separated and your father took you away with him while you mother stayed there. You did not see her again until last year.
20 You were raised variously by your father, his partners from time to time and your grandfather.
21 Your schooling was disrupted by frequent change and your father discouraged you from completing secondary school and, eventually, your relationship with him foundered when he was violent towards you.
22 You had some aspirations to complete school and qualify for a professional career, but that was not possible despite your attempts to complete a course at TAFE.
23 Since leaving school, you have had various forms of unskilled employment, but have not been working for some time and you are in receipt of the NewStart Allowance, whilst living in a boarding house.
24 Your instructions to your counsel, Ms Clarke, are that you do not drink much alcohol and you had not had much to drink on the day in question which, perhaps, explains the lower level of your involvement and your effort to prevent the assault on the victim.
25 In that regard, any question of parity with the other co-accused is of, perhaps, some lesser relevance in determining the appropriate disposition. Clearly, your sentence should be considerably more lenient.
26 Putting aside the issue of alcohol, the matter of drug abuse is a different story.
27 The corrections officer who assessed you last week ascertained from you that you are still using heroin and that that, doubtless, explains why you are not reliably complying with your Methadone program, and why you are unreliable when it comes to attending court. It may also explain your alleged failure to comply with the Community Corrections Order imposed last year in relation to a subsequent matter and for which you are to appear in the Magistrate's Court on 4 July for breach proceedings.
28 In one sense, you are not ready for a Community Corrections Order, confirmed by the alleged breach and by your assessed unsuitability for a further order because of the alleged breach.
29 The fact that you spent time in a psychiatric hospital ward on more than one occasion suggests a serious problem, perhaps drug induced psychosis or perhaps schizophrenia, but there is no medical evidence before me and only the apparent prescribing of medication for such a condition might suffice as evidence of this.
30 To be more specific, you told your counsel that you have run out of medication and you need a new prescription.
31 You spent 31 days in custody after your arrest and Ms Clarke submitted that time served could be the appropriate disposition, but preferably, the alternative of an undertaking to be of good behaviour.
32 After careful consideration of the various options open to me, I have decided the best course is the latter.
33 Time served would appear on your criminal history as, in effect, a one month sentence of imprisonment to be served which, in my view, taking all the circumstances into account, could offend against the principle of parity with the co-accused.
34 Accordingly, I have decided to require from you an undertaking to be of good behaviour for the next 12 months and that will continue, whatever happens on 4 July, when you are dealt with by the learned magistrate.
35 If you had pleaded not guilty, I would have sentenced you to one month's imprisonment with 31 days declared as already served.
36 HER HONOUR: The prosecution seeks an order for a forensic sample to be obtained under s.464ZF of the Crimes Act and I did not ascertain with Ms Clarke last time whether that was consented to or not.
37 MS CLARKE: I have instructions that's consented to, Your Honour.
38 HER HONOUR: All right. Thank you.
39 MS CLARKE: If Your Honour pleases.
40 HER HONOUR: I make that order and, Mr Collins, I must advise you, the police have the power to use reasonable force to obtain the sample, but I trust that won't be necessary.
41 Mr Collins, will have to sign the adjourned undertaking if he agrees to be bound by it. Do you agree to be bound by it, Mr Collins?
42 MR COLLINS: Yes, I do.
43 HER HONOUR: Thank you. Finally, Mr Collins, just before the matter's adjourned, the undertaking means that you'll still be under the scrutiny of the court. If you breach the undertaking within the next 12 months, I will hear about it and it will be up to me to determine what to do about that apparent breach. I'll want to know about it and I'll then, hear what happened on 4 July in the Magistrate's Court. Thanks, Ms Clarke.
44 MS CLARKE: If Your Honour pleases.
45 HER HONOUR: Thank you, Mr Albert.
46 MR ALBERT: If Your Honour pleases.
47 PRISONER RELEASED
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