Director of Public Prosecutions v Collins

[2015] VCC 174

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01758

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAYNE COLLINS

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 February 2015
CASE MAY BE CITED AS:	DPP v Collins
MEDIUM NEUTRAL CITATION:	[2015] VCC 174

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

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Gibson
For the Accused	Mr D. Galbally

HIS HONOUR:

1Wayne John Collins, you have pleaded guilty to an indictment charging you with obtaining financial advantage by deception, (two charges), involving an advantage to the value of in excess of $360,000.  It seems to be agreed that the net loss resulting from you offending conduct is $137,865.80.  You have also admitted to a number of prior court appearances and convictions, including for offences of dishonesty, the most significant offences of that kind resulted in your conviction in this court on 16 February 2004, for offences of obtaining a financial advantage and obtaining property by deception.   You received a sentence of 20 months wholly suspended for a period of three years as a result of that offending conduct.

2The details of that are scant but they involved, it seems, you obtaining fraudulently some credit cards and to that extent, there is some, although not great, similarity with this offending conduct.

3The prosecution tendered and relied upon a summary of prosecution opening, which was read on the last occasion the matter came before me and I am not going to read it again.  It is exhibit A.   It catalogues the circumstances in which you were asked to participate in the obtaining of the financial advantage ostensibly to enable the purchase of some motor vehicles by associates of yours, some of whom are also charged with similar offending conduct and are awaiting trial.

4You had a false identity available to you and supporting documentation.  That was supplemented by other false documentation, provided with the assistance of your co-offender or offenders.  There was a degree of culpability attaching to your offending, which I would regard as significant and ordinarily requiring a substantial term of imprisonment.  I regard the role that you played as clearly a secondary one, but nevertheless a vital one.   You must have appreciated that even though you may not have expected any direct tangible reward that you were being asked to take part in a substantial criminal enterprise on each of the occasions that you participated.

5In those circumstances, I am satisfied that you went into your offending with your eyes open and that your motivations were certainly not brought about by any sense of need on your part.  There is no evidence of any reward of any kind accruing to you, but I think it would be naïve for me to conclude that there was no expectation of some reward or that you did not regard this as being some form of favour owed to one or more of your co-offenders.

6However, I do not see any evidence that you were to participate in any benefit from either use or ownership of the motor vehicles and there is no evidence of any clear link between your offending conduct and any tangible benefit that has been drawn to my attention.

7Turning to matters personal to you.  You are a person with a very good work record.   Although that has been punctuated by the commission of various offences over a large number of years, you have not served any terms of imprisonment, and you have the capacity to lead an honest life and a hard working life.  You have a contract, which involves cabling work with the NBN organisation and a prospect of working with Brandon and Tyler, two of your sons, for a period of seven years.  That is encouraging and one would hope that that would keep you on the straight and narrow and will ensure that this is the end of your criminal record.

8It would be a significant step to deprive you of your liberty at this time when you have a real prospect of not only making good yourself through this contractual arrangement, but assisting two of your offspring to participate in this substantial venture.

9If it had not been for the fact that you have since your last appearance before me, participated with the police and the production of the witness statement, which is Exhibit 1 on this plea hearing, and if it had not been for the fact that you, in that statement, set out what seems to me to be a credible and, I would assess substantially, truthful account of your involvement with your co-offenders in these offences.  If it had not been for the promise you have made to assist the prosecution of your co-offenders by giving evidence on oath of the matters set out in your statement, I would have sent you to prison.

10Whether that would have been accompanied by, in part, a community corrections order is a moot point.  I would be inclined to think that the term of imprisonment that would have been appropriate would have been beyond that which it would have been appropriate to attach to a community corrections order.

11However, the willingness to assist the prosecution is to be treated as a very significant sentencing factor.  The prosecution conceded that.  It is a courageous thing for a person in your position to do.  It can have repercussions and the court needs to take that into account in assessing the degree to which it mitigates what otherwise is a serious offending conduct.  It seems to me that in this case, the evidence in which you are apparently prepared to give will be of considerable assistance to the prosecution of the co-offenders and in those circumstances, I am prepared to impose a sentence which does not involve a term of imprisonment.

12The sentence which I have in mind is a community corrections order which would require you to complete 250 hours community work.  I give you two years to do that.  I cannot impose that order unless you consent.  Do you consent to that?

13OFFENDER:  Yes, I do.

14HIS HONOUR:  Thank you.  You will appreciate, no doubt, because I am sure Mr Galbally has explained to you if you did not already know that the imposition of a community corrections order still operates to some extent a bit like a suspended sentence in the sense that if you commit any further offences punishable by imprisonment during the period when the order is in force, then you would be in breach of the order for that reason and you would be brought back before this court, probably before me, and you would be up for up to three months' imprisonment for the breach of the order.  Up for any imprisonment that might flow from the commission of the offences that put you in breach and you would be liable to be resentenced on this matter.

15If that occurred, I would have no hesitation and I would be surprised if any of my colleagues would have any hesitation in imposing an immediate term of imprisonment upon you.  You would leave the court with no choice.  There are of course other conditions attached to the order.  One is that you complete the period of the 250 hours of unpaid community work and you will have to do that as required.  There will be requirements for you to report to a community corrections centre and I will hear in a moment what that will be, and that will have to be within the next 48 hours, essentially.  Two clear business days, but the sooner you do it, the better.  Then you would have to attend as and when required, there will be some capacity to negotiate, but as and when required to complete your unpaid community work.

16If you do not comply with the lawful directions that you are given, then you may be in breach for that reason also.  There are a number of other conditions which will be explained to you.  Breach of any of those, would also put you in breach of the order and have the same potential consequences as I outlined earlier and require you to be brought back with the possibility of being resentenced.

17The sentence on the face of it, is a relatively lenient one, but one which recognises the need to encourage persons like yourself to assist the prosecution where they are able to do so.   It will be necessary for you to make good on your promise, otherwise there may be an application by the prosecution to bring the matter back so that the question of sentence can then be reviewed.

18An additional consideration which comes into play is that the public, it seems to me, is best protected very often by promoting rehabilitation, where a person has made some steps and I regard this step of assisting the prosecution as a step in the right direction towards rehabilitation.  Where they have taken steps to rehabilitate themselves and to insulate themselves from the need or temptation to commit further offences of this kind or any other kind for that matter, then that is to be encouraged.  I think that it would be an unfortunate step, detrimental to your rehabilitation, if a custodial sentence was imposed at this time.

19I am not sure that the family circumstances amount to special circumstances and I am not sure that it has really been put that way, but it seems that you are exercising a good influence on your offspring, with a view to giving them a good work ethic and that too I think is a positive which will I think help you with your own rehabilitation, and in turn therefore assist the community by protecting the community from further offending by you in the future.

20All of that, of course, has to be balanced against the other sentencing considerations, which involved denunciation and just punishment and individual deterrence, that is deterring you and perhaps most importantly in cases of this nature, which are often difficult to detect, general deterrence.  That is deterring other people.  This might seem to be soft on general deterrence but in light of the recent Court of Appeal decisions on the nature and effect of community corrections order, it seems to me to be a fair balance in this case.

21I note that the prosecution has submitted that it is within the proper range of sentencing options available to me to impose the order that I have already foreshadowed.

22For all of those reasons, I will ask you to go through the document that has been prepared now with Mr Galbally and Mr Travers to ensure that you are satisfied with its terms, and if you are satisfied, sign it.   Then I will countersign it and the order will be made.  So the sentencing orders that I propose to make are that in relation to Charge 1 and Charge 2 on the indictment, I convict you and impose a community corrections order for a period of two years.  The only special condition attached being that you perform 250 hours of unpaid community work within that two year period.  I note that if you complete the 250 hours within the two year period, the order comes to an end automatically, because there are no other conditions attached to it.

23So it is up to you how quickly you perform those 250 hours.  Obviously subject to the availability of relevant work, you can bring the order to an end by completing them well within that two year period if the work is available to you and you choose to do it.

24But for your pleas of guilty, I would have sentenced you to a period of imprisonment of three years and six months with a non-parole period of two years.

25MR GIBSON:  There is a 464ZF order.

26HIS HONOUR:  Yes, there is, is there not and I think Mr Galbally you indicated that there is no opposition to that.

27MR GALBALLY:  That is true.

28HIS HONOUR:  Yes, all right.  Well I will make the order for a forensic sample.  The order will require you to undergo a forensic procedure by reporting to the police station at Keilor Downs commencing 28 days after the date of sentence, which is today of course, or once an instituted conviction appeal is finally determined, I do not think that is going to happen.  So in real terms, we are talking about within four weeks of today, you will have to report to the police station at Keilor Downs and submit to the provision of a forensic sample by the taking of a scraping from the inside of your mouth.  That is easily done, but if when you do report and the request is made and you fail or refuse to provide the sample that you were asked to provide by that means, then the officer will be authorised to take a blood sample and may use reasonable force to obtain the blood sample.  I am quite sure you will not put them to that trouble.

29I will sign those orders and Mr Travers is going to - the Melton Community Corrections Services, as I understand it, is that right?  And you will have to report to them within two clear working days of today, as I have explained.

30Just go through the order, if you would, with Mr Travers and Mr Galbally and if you are satisfied with it, sign it and the order is in place.

31Mr Galbally, do you want to approach?

32MR GALBALLY:  I will, Your Honour, thank you.

33HIS HONOUR:  Yes.

34Yes, well I have signed the order, the order is now in place, you may now leave the dock and the s.464 orders are signed as well.

35MR GIBSON:  Your Honour, could I have the original statement back and if a copy could stay on the file, Your Honour, thank you.  Because that might be needed for a committal proceeding, Your Honour.

36HIS HONOUR:  I am sorry?

37MR GIBSON:  The original might be needed for a voir dire or a Basha or committal, Your Honour.

38HIS HONOUR:  Indeed, yes.  A copy will be on the file.

39MR GIBSON:  Thank you.

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