Director of Public Prosecutions v Collyer

[2020] VCC 432

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-02291

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS COLLYER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2020
DATE OF SENTENCE:	15 April 2020
CASE MAY BE CITED AS:	DPP v COLLYER
MEDIUM NEUTRAL CITATION:	[2020] VCC 432

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Ms K. Mildenhall	Victoria Legal Aid

HIS HONOUR:

1Nicholas Collyer, you have pleaded guilty to a charge of recklessly causing serious injury, false imprisonment, common assault, possession of a drug of dependence and two summary offences.  The circumstances arise from the relationship between you and the victim.  A relationship which existed for about three years before you brutally attacked her in early August last year.  Unfortunately, both of you were using methamphetamines at the time.  This drug is a scourge.  Users can become paranoid and then react violently. 

2On 1 August 2019, the police officer called at your home asking about a female named Holly.  Neither you or the victim knew of a Holly.  Later you injected methylamphetamines and maybe also took GHB.  You quickly became paranoid that the victim was Holly, or that Holly had taken over the victim's body and life.  You began speaking in what the victim described as a weird manner.  You accused her of taking the victim away.  You aggressively demanded to know where the victim was and you said 'What have you done with the victim?'  'Tell me where she is'.  Then you commenced to punch the victim, striking her about ten times to her head and body.  She was screaming at you to stop.  It made no difference.  You then escalated the attack by binding her hands behind her back with duct tape.  You also covered her mouth with duct tape.

3You got a solid weapon, a baton, and you hit the victim repeatedly to her head and body and arms and legs.  She bled from cuts to her head.  The victim's ordeal continued.  You took her to the bedroom where you filled a large bottle with water and repeatedly poured it over the victim, including into her mouth.  This was bizarre behaviour, but an aggressive and concerning aspect of the attack.  You remained convinced throughout that the victim was Holly.  Somehow she convinced you to take her to her brother's.  You drove her still bound around the block, all the while talking to imaginary people on the phone.  Once you had arrived back at the house, she tried to escape, but you hit her and dragged her back to the house.  You continued your delusional behaviour until quite suddenly, and unexpectedly, you changed.  It was as if you woke up suddenly.  You looked at the victim and said 'What have I done?'.

4You removed the duct tape.  Then the victim slept on and off for about two days, before you convinced her to go to the hospital.  She had multiple injuries, including fractured ribs and a punctured lung with lung collapse.  She had a fractured nose and multiple bruises, cuts and swellings and lacerations to her head requiring stapling.  The victim is a type 1 diabetic and as a consequence, all the injuries were exacerbated and more dangerous.  With her condition, healing is slower and infections more likely.  In fact, the victim in her victim impact statement speaks of the infection she sustained.

5At the hospital the victim did not tell of what actually caused her injuries.  She went home with you and endeavoured to settle back into ordinary live.  However, a few days later, you again became paranoid and threatened her with a weapon.  The victim then went to the police and outlined the truth.  You were arrested on 5 August 2019 and in your record of interview, you were insightful saying the following:

'It is kind of hard to explain.  Like I had a bit of a mental break.  My mind just broke and I bashed her.  I just thought she was hiding people that were fucking with my head.  She tried to convince me to stop because I thought she was someone else and then at, I think it was just after that, that I snapped out of it and realised she really was still her'.

6The victim has been devastated by what happened to her and the consequences in her victim impact statement, and I will just precis this, but I have read it all, taken into account the remarks made by your counsel.  She said 'How can someone who is meant to love you, do something like that?  She was in disbelief, highly anxious and hurt and felt betrayed.  She is unable to sleep now and has nightmares about the event.  She is too scared to trust people anymore.  When she is out in the public, she is scared.  She only goes to places that she knows and feels anxious and stressed every day.  She no longer feels safe in Geelong anymore and she has to leave behind friends and family and some possessions to feel safe again.  You disrupted her whole life.

7Violence inflicted on women in the home is a blight on our community.  The courts in recent times have properly acknowledged the seriousness of these crimes.  In an important decision of Kalala in 2017, the Court of Appeal said the following:

'The trial courts of this state, that is the County Court and the Supreme Court', but also I add, the Magistrates' Court as well, 'are imposing sentences for family violence with increasing frequency.  This court has repeatedly emphasised the need to condemn family violence in line with community expectations.  In Fillers v The Queen, the court acknowledged shameful truth, that family violence is the leading cause of illness, disability and death amongst Victorian women aged between 15 and 44'.

8The court went on:

'The sentencing law has long recognised the prevalence of violence by men against women, in or after domestic relationships and the importance of general deterrence in such circumstances'. 

9These important points have been repeated all too often by the Court of Appeal in Lim, in Ristevski, and in Brown just in February of 2020.  Accordingly, the sentencing purposes of denunciation and deterrence are to be central to my considerations.  Your crime needs to be understood, however, in its full context.  It seems that up until that point, the point of your attack, you had not displayed aggression or violence to the victim.  This was not, as is so often the case, violence in circumstances of previous and persistent violence, built up over the relationship.  Your prior convictions, mainly from the period of 2009 to 2011, are not crimes of violence, say for the significant crime of armed robbery committed in 2008.  I do note for that crime, you received a wholly suspended sentence of twelve months.  The outbreak of violence on this occasion was plainly sparked by your use of methamphetamines.  Plainly you were in a drug induced psychosis, with your delusions that the victim had been taken over by a woman called Holly.  You were talking to imaginary people and behaving in an entirely bizarre manner.  But for the fact that your psychosis was drug induced, you would have likely had a defence of mental impairment and likely to have been found not guilty by reason of mental impairment.  However, I am not able to consider this complete collapse of your capacity to reason as eliminating your moral culpability, that is because it was drug induced.

10However, given you had never acted violently before while drug effected, there is some role for mitigation of moral culpability, general deterrence and specific deterrence.  Here I follow the approach of Justice Hollingworth and the cases referred to me by your counsel.  You had some warning of the bizarre behaviour when in June, July of 2019, you set yourself on fire when in a drug induced psychosis, but this was not violent behaviour directed at someone else, indeed not directed at a victim.

11The seriousness of your behaviour is evident from the protracted aspect and the brutal nature of the violence, where you use weapons and restraint.  Fortunately, you have re-established your equilibrium since you have been in custody.  You have done as many courses and programs as you could, with a focus on respectful relationships and drug rehabilitations.  You said this to
Mr Cummings, the medicolegal psychologist who saw you for the purposes of this plea.  You said, 'I'll do anything to better myself'.  You have received visits from a sister and a sister in law and you have been speaking with your sister reasonably regularly.  You stated that you felt sad and depressed and often feel like crying, concerning your assault on the victim.  You said 'I isolate myself, except to go to work.  I've heard of people using too much ice and losing the plot and becoming paranoid, but I never thought this would happen to me'.

12You recognise what you did has caused real harm and you are ashamed.  I accept that you are genuinely remorseful.  Your plea of guilty is valuable, especially in the current circumstances of the COVID-19 crisis.  I adopt the remarks of Justice J Dixon expressed in Bourke v The Queen with respect to the value of a plea of guilty in the current climate.  As to your personal circumstances, you are currently 31.  Your father was a heavy drinker and drug user and unpredictable.  Your mother left him and established another relationship with you were in your primary school years.  You did not form a close relationship with her new partner.  You have not seen your mother since 2019. 

13You grew up in the Shepparton area and left school at 16 and worked in a fast food outlet.  Most importantly, in your late teens, you formed a relationship and have four children from that relationship.  You and your partner separated in 2016.  She was a drug user and the children were placed in your care.  The mother recovered and was able to resume parenting, but this saw you kept away via an intervention order in 2019.  You have not seen your children since.  They are important to you and you want to get to the point of being able to see them regularly. 

14As to your drug use, you were an intermittent user of ice in your mid-20s.  You say that when you lost the children, you increased to become a daily user of ice.  You combined intravenous ice use with GHB.  As I said in June, July 2019, you attempted to set fire to yourself while in a drug induced psychosis.  Sadly, this did not wake you up.  As you said to Mr Cummings, that as a consequence of this offending, you would 'Never resume using methylamphetamines', but you also recognise that you would need help to stay off drugs once you were back in the community.  As I have indicated, the principal sentencing purposes are denunciation and deterrence to you, but also especially to others who may use drugs, with all the risks involved and then become violent as too, many do.  However, your rehabilitation remains important, but it relies entirely on you staying away from methylamphetamines, indeed all drugs, immediately upon your release and thereafter.  It seems to me you are in a reasonable position to do better once released.

15Your counsel submitted that a community corrections order, in combination with the gaol you have already served, would be the appropriate and beneficial sentence.  It is beneficial in the sense, not just to you, but to the community, as you would be carefully monitored and helped with drug rehabilitation.  The prosecution submitted that a combination sentence was not within proper sentencing discretion.  I had you assessed and you were found to be suitable for a community corrections order.  As the Court of Appeal has made clear in Boulton, the new sentencing landscape contemplates community corrections order for serious offences that would have once been punished by significant periods of imprisonment.  The benefits of community corrections orders are that they simultaneously punish and reform and that is not to be undervalued.

16That is particularly so when an accused has woken up to the trauma their crimes have caused to the victim and has shown commitment to rehabilitate and overcome the source of the problems.  Your problems are drug use.  You recognise this and has sworn off ice on your release.  You have to demonstrate this in the community.  You will be held to your promise by a tight and onerous community corrections order that I will shortly impose.  The community will be better off if you are drug free and able to recover to continue with a lawful lifestyle.  In my view, the main charges, an aggregate term is appropriate for this bizarre episode of drug induced criminality.  You have served 255 days on remand.  That will be a figure that will be checked shortly. 

17In recent times, this has been more stressful, as it has been without visits because of the current health crisis.  The time that you have served in prison is significant, but in my view, inadequate for the crimes that you committed.  I have significantly moderated my sentence because of the full context of your offending at the time, that is the bizarre offending at the time and the full context that operates now.  The appropriate form of sentence is, as I said, an aggregate sentence for the three indictable offences.  The summary matters are of no added moment.

18What I intend to do is impose for Charges 1, 2 and 3, an aggregate sentence of 14 months imprisonment, together with a community corrections order that will  last for two years and six months.  On Charge 4, the possession of the drug of dependence, you will be sentenced to the community corrections order that I have already imposed.  That is, it will be concurrent with the community corrections order on Charges 1, 2 and 3.  The time that you have spent in prison, as I understand it, is now 255 days.  Is that correct Mr Brown and Ms Mildenhall?

19MR BROWN:  I got 253 days, Your Honour.

20HIS HONOUR:  Thank you.  What do you say?

21MS MILDENHALL:  I have been emailed by the Crown instructor saying it's 254 days.  I'm not sure if that includes the final day or not, but I'd be satisfied with that, or 255 if it includes today.

22HIS HONOUR:  The sentence starts today, so it is 254 days.  That will be how it will operate.  A figure has been calculated and reckoned as 254 days in custody.  I will declare that you have served 254 days and that declaration will be entered into the records of the court and I will make it clear that it is part of the sentence that I have just imposed.  So the prison authorities will know that you have already served 254 days, about eight months of the sentence that I had imposed which is 14 months.

23As to the summary matters, they with conviction are proven and discharged.  I do not intend to impose any penalty upon your licence.  The community corrections order will be for two years and six months.  It will involve supervision, 200 hours of unpaid work.  You will have to undergo assessment and treatment for your mental health problems.  Assessment and treatment for drug addiction or drug problems and you will have to do programs that you are directed to do to reduce your reoffending.  All the hours that you do in respect to the mental health and the drugs and the other programs can be deducted from the 200 hours of unpaid work.  You will be under supervision.  Do you understand all these matters Mr Collyer?

24OFFENDER:  Yes, Your Honour.

25HIS HONOUR:  Now ordinarily Mr Collyer, a document would be produced, it would set out all the conditions of the community corrections order and you would go through that and sign it if you consent to it.  In the current circumstances we cannot achieve that, so I am just going to run through what is involved in a community corrections order and if you consent - you will give that consent orally and that will be noted.  So all those that are on a community corrections order have the following conditions and this applies to you for the two years and six months.  It is no small - it is an onerous order and it goes for a significant period of time.  You will be under supervision for all that time upon your release. 

26Now the mandatory conditions are, and the most important of those for you to understand is you must not commit another offence for which you will be imprisoned during the time that the order is in place.  So no further offending.  If you do commit an offence punishable by imprisonment during two years and six months that you are on the order, you will come back before me and the mercy that has been shown here will not be repeated.  Do you understand that?

27OFFENDER:  Yes, Your Honour.

28HIS HONOUR:  You will go back to gaol.  Now the other conditions are all about cooperation.  You have got to cooperate with the sentencing regulations they set out that they will need to take, identifying photographs and so on and so forth of you.  You have got to comply with all that.  You have got to receive visits from the Office of Corrections.  You have got to report to the Office of Corrections when required.

29You have to attend at the Office of Corrections here in Geelong in Little Malop Street within two clear working days of being released from prison.  You have to notify the Office of Corrections if you change your address or your work, your employment.  Do you understand?

30OFFENDER:  Yes, Your Honour.

31HIS HONOUR:  You cannot leave Victoria without getting permission from the Office of Corrections and you have got to obey all lawful directions from them.  Do you understand all that?

32OFFENDER:  Yes, Your Honour.

33HIS HONOUR:  Thank you.  The conditions that are specific to you are as I outlined, you must be under supervision.  That will be visits, phone calls, they will keep you and monitor you and making sure that you are remaining lawful throughout the whole time.  That is the supervision while you are in the community.  That is your punishment in the community as much as anything.

34In addition, you must do 200 hours of unpaid work.  That is not optional, you have to do every single hour, when you are required from beginning to end.  But you can, and you will need to attend for mental health treatment assessment, you will need to attend for drug rehabilitation, that is vital and you have to do programs to assist you to not further offend.  All the hours that you spend on that can be deducted from the 200 hours of unpaid work.  Do you understand all that?

35OFFENDER:  Yes, Your Honour.

36HIS HONOUR:  Do you consent to that community corrections order?

37OFFENDER:  Yes, Your Honour.

38HIS HONOUR:  All right, I will note that consent and you will get documents setting that all out.  All right, is there any further orders required?

39MR BROWN:  Your Honour, there was a disposal order which has hopefully been E-Lodged.

40HIS HONOUR:  All right, I make a disposal order.  Anything else?

41MR BROWN:  Section 6AAA.

42HIS HONOUR:  I am sorry.  Yes, I am sorry.  I would have imposed a sentence of three years, with a minimum of two.  Is there anything else?

43MR BROWN:  No, Your Honour.

44HIS HONOUR:  Thank you.

45MS MILDENHALL:  No, Your Honour.

46HIS HONOUR:  Thank you.  Well I will end the call.  Sorry, I will adjourn the court.  I will leave the court.  I do not know whether there is any capacity
Ms Mildenhall for you to have any conversation with Mr Collyer there, probably not, given that it is a conference call and various other people are on the call.  You will just have to contact him I think in the usual ways after this has ended.  Do you understand?

47MS MILDENHALL:  Yes, Your Honour.

48HIS HONOUR:  Do you understand that Mr Collyer?

49OFFENDER:  Yes, Your Honour.

50HIS HONOUR:  Your lawyers will get in touch with you as best they can in the circumstances.  Thank you very much, I will end the call now.  You will get documents sent to you in the usual way.  Thank you.

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