Director of Public Prosecutions v Collison

[2022] VCC 2189

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-21-00935 & CR-21-01950

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

BILLY COLLISON & STEVEN GARRATT

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2021
DATE OF SENTENCE:	13 December 2021
CASE MAY BE CITED AS:	DPP v Collison & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 2189

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Kidnapping contrary to common law - Intentionally causing injury - Robbery - Early pleas of guilty - Prior convictions for violence - s 5(2H) of the Sentencing Act 1991 considered – Complex psychological profile and cognitive impairment

Legislation Cited: Crimes Act 1958; Sentencing Act 1991

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; Brown v R [2020] VSCA 60

Sentence (Collison): Imprisonment of 3 years with a non-parole period of 18 months - s 6AAA declaration - Imprisonment of 4 years with a non-parole period of 2 years and 6 months

Sentence (Garratt): Imprisonment of 12 months - Community correction order for a period of 18 months with conditions - s 6AAA declaration - Imprisonment of 18 months and a community correction order of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Foot	Office of Public Prosecutions
For Accused Collison For Accused Garratt	Ms F. Fox Mr J. Barrera	James Dowsley & Associates Stary Norton Halphen

HIS HONOUR:

1       Billy Collison and Steven Garratt, you have each pleaded guilty to the following charges:

(i)  Kidnapping contrary to common law.  The maximum penalty for that offence is 25 years imprisonment, and;

(ii) Intentionally causing injury contrary to s 18 of the Crimes Act1958.  The maximum penalty for that offence is 10 years imprisonment.

2 Billy Collison, you have also pleaded guilty to one charge of robbery, contrary to s 75 of the Crimes Act1958. The maximum penalty for that offence is 15 years imprisonment. Steven Garratt, you have also pleaded guilty to the related summary offence of committing an indictable offence on bail, contrary to s30B of the Bail Act1977.  The maximum penalty for that offence is three months imprisonment.

3       Billy Collison, you pleaded guilty at a committal mention, and Steven Garratt, you pleaded guilty at committal.  No witnesses were called in either of the cases and your early pleas of guilty spared the victim of your offending from giving evidence.  Furthermore, your pleas facilitated the administration of criminal justice during the COVID-19 pandemic and I have taken your high value pleas of guilty into account in your favour in mitigation of sentence.

4       Billy Collison, you have admitted a criminal history for a range of offences and you have, by my reckoning, four prior court appearances for offences involving violence.  You also have prior court appearances for offences of dishonesty and weapons offences.  You have been the subject of dispositions intended to facilitate your rehabilitation, which to date have been unsuccessful.  In my opinion specific deterrence is a prominent sentencing consideration in your case.

5       Steven Garratt, you have one prior court appearance in the Magistrates' Court in 2017 which has no significance for sentencing purposes in your case. 

6       A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows -

7       On 3 July 2020 the victim of your offending, Brody Mitchell, who was then aged 19, went to Garratt's house and early the following morning Garratt despatched him on his bike to purchase $100 worth of methylamphetamine from a local drug dealer.  While Mitchell was purchasing the drugs, Garratt's bicycle was stolen.  On discovering this, Mitchell panicked, used the drugs, and did not return to Garratt's house.

8       An angry Garratt enlisted his then neighbour Collison and co-accused Sommer, who had a car, to locate Mitchell.  At approximately 9 a.m. they located Mitchell and forced him into Sommers' car.  Mitchell was then subjected to a series of assaults in the car and at a remote location in the Warby Ranges, where he was stripped of his clothing and further assaulted.  He was then driven to Sommers' house where he was again assaulted.  Later that day he was released.

9       During the assault in the vehicle Collison also searched Mitchell's clothing and stole a number of personal items from him.  Mitchell attended at Wangaratta Hospital where he was treated for a range of injuries, including a burn caused by Sommer with a cigarette lighter.

10      All three offenders were arrested on 7 July 2020 and interviewed.  Collison denied any knowledge of the offending and Garratt declined to answer questions.  Each were then charged and remanded in custody.  It is plain from this summary that your offending was completely without justification and involved the extended use of violence on a defenceless and outnumbered young man.  He was subjected to a prolonged and, no doubt, terrifying ordeal and this sentence must be calculated to deter others from committing senseless acts of violence such as this.  You must also be punished for your cowardly and irrational offending.

11 I have received in evidence a victim impact statement of your victim, and it is plain from its contents that your offending has had a deeply traumatic effect upon him, and he continues to live in fear of all of you. By operation of s 3(1) of the Sentencing Act1991 (‘the Act’) the offence of kidnapping is a category 2 offence, and I am required to sentence you to a custodial disposition unless the exceptions provided for in s 5(2H) paragraphs (a) to (e) of the Act are engaged.

12      I now turn to your personal circumstances -

13 Billy Collison, you were born in September 1998 in Wangaratta and are now aged 23. You were 21 at the time of your offending. Your counsel did not submit that the exceptions provided for in s 5(2)A of the Act are engaged in your case, and accordingly I must impose a custodial disposition upon you for the offence of kidnapping.

14      Your childhood and formative years were seriously disrupted following your parents' separation, and prior to this you were exposed to family violence on a regular basis.  You also suffer from dyslexia and you left school in Year 8.  Following the separation of your parents you resided with your mother and experienced further family violence carried out by your then stepfather.  Your birth father is, by all accounts, also a violent criminal and you resided with him between the ages of 14 and 17 and were then exposed to further serious acts of violence.

15      I accept that this regular exposure to violence as a child is a cause of your propensity for violence, and the principles set out by the High Court in Bugmy v R (2013) 249 CLR 571 are engaged in your case, thereby moderating your moral culpability for your offending. Despite your disadvantaged upbringing, you have a good work history and have essentially been in full employment since leaving school. You have one sister and a young stepbrother.

16      I have received in evidence a psychological report of Ms Sandra Ocorillo, setting out your background and psychological profile and detailing the effects upon you of the family violence that you were exposed to as a child.  She concludes that you suffer from antisocial personality disorder consistent with your history of violent offending.  You also have impaired intellectual functioning.

17      Your counsel did not, however, submit that the principles set out in R v Verdins (2007) 16 VR 269 and Brown v R [2020] VSCA 60 were engaged in your case, but I nonetheless accept that your personal circumstances are relevant in relation to your background and the formulation of the appropriate sentence in this case.

18      The findings of Ms Ocorillo indicate that your prospects for rehabilitation are to be approached with caution, and, in my opinion, it is necessary for you to be supervised in the community on your release from prison.  You also require ongoing psychological support to manage the effects upon you of your disrupted childhood and development.  It is also necessary for me to give effect to your relative youth and the fact that this is the first occasion that you have been in custody.

19      Your incarceration has been during the COVID-19 pandemic, and the restrictions imposed upon you have caused behavioural disturbances, resulting in you spending extended periods of time in lockdown and isolation.  You are currently held at a maximum-security prison.

20      I have also received in evidence a helpful letter from your mother detailing her support for you and her observations of the impact of imprisonment upon you.  You will be able to reside with her on your release, and you have the offer of employment with a concreting firm in Wangaratta.  These factors bode well for your future, and you have also undertaken drug testing in prison and returned negative results; your past history of drug abuse appears to have stabilised whilst you were in custody.

21      There is a close relationship between the acts performed by you and the offences that you have pleaded guilty to, and I am conscious of the need to avoid double punishment in your case.

22      Steven Garratt, you were born in March 1990 in Clayton and are now aged 31.  Your childhood and developmental years were disrupted by your parents' separation and your education was limited due to you suffering from a number of cognitive impairments.  You left school in Year 10 and thereafter commenced a panel beating apprenticeship which you did not complete.  You developed polysubstance abuse disorder in your late teens, and this in turn compounded your pre-existing mental illness.

23      I have received in evidence a psychological report of Ms Fiona Best setting out your background and psychological profile.  I accept that you are not currently suffering from the symptoms of a mental illness, but you are nevertheless prescribed a range of antipsychotic and antidepressant medications by your treating psychiatrist, Dr Peter Heffernan, who states that you suffer:

'With lifelong ADHD with an associated mood and anxiety disorder and a vulnerability to self-medicate with alcohol'.

24      In Dr Heffernan's opinion, your ADHD leads to poor insight and judgment and consequent offending.  Further to the opinion of Dr Heffernan, I have also received in evidence a brief Forensicare report and your discharge summaries, which detail your psychiatric history and admissions to psychiatric hospitals when you have been in the community.

25 Based on this body of psychiatric evidence, it was accepted by the prosecution that the exception provided for in s 5(2H) paragraph (c)(ii) of the Act was engaged in your case, and indeed you were admitted to the acute inpatient psychiatric unit at Ravenhall Correction Centre when you were on remand for these offences. You were remanded in custody when charged with these offences on 7 July 2020 and granted bail on 28 July 2021, having spent 387 days on remand.

26      Since your release you have been engaging positively with the CISP program and other services to support your ongoing rehabilitation and you are now in stable accommodation.  In light of this material, I have had you assessed for a community correction order, and you have been assessed as suitable for that disposition.

27      In the result the sentence of the court is as follows –

28      In relation to Billy Collison:

29      On Charge 1, you are convicted and sentenced to be imprisoned for 2 years. 

30      On Charge 2, you are convicted and sentenced to be imprisoned for
15 months. 

31      On Charge 3, you are convicted and sentenced to be imprisoned for
6 months. 

32      Charge 1 is the base sentence.  I direct that 9 months of the sentence on Charge 2, and 3 months of the sentence on Charge 3 be served cumulatively on each other, and cumulatively on the sentence imposed on Charge 1.  This makes for a total effective term of imprisonment of 3 years.  I direct that you serve 18 months imprisonment before becoming eligible for release on parole.

33      I declare that you have served 523 days by way of pre-sentence detention not including today.  But for your plea of guilty I would have imposed a term of imprisonment of 4 years and fixed a non-parole period of 2 years and 6 months. 

34      Steven Garratt, on all of the charges including the related summary offence, you are convicted and sentenced to the aggregate sentence of 12 months imprisonment.  I direct that at the conclusion of serving that sentence you serve a community correction order for a period of 18 months on the four conditions provided for in the Sentencing Act and on the following special conditions:

·     During the period of the order you be under the supervision of a community correction officer;

·     During the period of the order you undertake treatment and rehabilitation for drug addiction;

·     During the period of the order you undertake treatment and rehabilitation in relation to mental health;

·     And during the period of the order you undertake programs to reduce the risk of your re-offending.

35      But for your plea of guilty I would have imposed a term of imprisonment of 18 months and fixed a community correction order to follow for a period of 2 years.

36      I declare that you have served 392 days by way of pre-sentence detention, and you have therefore served the 12 months term of imprisonment which forms part of the aggregate sentence in your case. 

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