Director of Public Prosecutions v Meadows-Collisson

[2022] VCC 412

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

Case No. CR-21-02533

DIRECTOR OF PUBLIC PROSECUTIONS

v

BAILEY MEADOWS-COLLISSON

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2022
DATE OF SENTENCE:	24 March 2022
CASE MAY BE CITED AS:	DPP v Meadows-Collisson
MEDIUM NEUTRAL CITATION:	[2022] VCC 412

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:          Aggravated burglary - attempted armed robbery - common assault
- fail to comply with direction of authorised officer

Legislation Cited:   Sentencing Act 1991

Cases Cited:Bugmy v The Queen [2013] HCA 37

Sentence:38 months' imprisonment, 21 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M. Zammit	Office of Public Prosecutions
For the Accused	Mr A. Bates	Adrian Paull Criminal Lawyers

HIS HONOUR:

1       Bailey Meadows-Collisson, you have pleaded guilty to an indictment charging you with an offence of aggravated burglary, which carries a maximum term of imprisonment up to 25 years, to an offence of attempted armed robbery which carries a maximum term of imprisonment of 20 years, and to an offence of common assault which carries a maximum term of imprisonment of five years. 

2       You have also asked me to take into account and have pleaded guilty to a related summary offence, in that you failed to comply with a directive from the Chief Health Officer arising from the COVID pandemic, in that you were away from your place of residence at the time of the offending.  That carries a maximum sentence of 120 penalty units, a penalty unit being at the relevant time I think little over $181.

3       All of the offences occurred on 29 August 2021. 

4       You have admitted a prior criminal record, which includes convictions for aggravated burglary and possession of a controlled weapon on 27 July 2020, a conviction for an offence of burglary on 30 August 2017 and a conviction for an offence of entering a building with intent to steal on 15 December 2017.  Your record includes numerous other offences of dishonesty and some offences of violence.

5       

You have previously served terms of imprisonment and periods of detention in a youth justice centre and, by committing these offences to which you have pleaded guilty, you are in breach of a community correction order imposed on

24 November 2020.

6       

I note that you had previously breached youth supervision orders and a youth attendance order and you have been in custody since your arrest on

30 August 2021, which we calculate now to be 206 days pre-sentence detention, not including today.

7       The prosecution tendered and relied upon a summary prosecution opening which is Exhibit A.  I am not going to go through it in great detail, suffice to say that the offending arose after you had ceased an intimate relationship with the female occupant of the house the subject of the aggravated burglary, who I will call the “female victim” in this matter.  That house was also occupied at the time of the offending by your female victim's new boyfriend (the “male victim”).  At the time of your entry to the premises the two of them were in bed together in the main bedroom.

8       Also in the house was the female victim's two-year-old son.  You must have known that all of those three people were in that house at the time you entered the premises.  That seems to be clear from communications you had with the female victim in the lead-up to the offending.  According to the prosecution summary of opening, which was not disputed by you, on an unknown date prior to the offending you sent a message to your female victim, stating, “I'm ganna give yu a heads up if I catch yu with another bloke he's ganna drop where I see him  Anyone can get it.”  Attached to that message was a Facebook profile picture of the male victim who was in the house at the time you entered.  And underneath the screenshot were the words, “Show him this.”

9       Just prior to the offending your female victim received another message from you via Snapchat wherein you told her that you were going to go to her house.  So, whilst it cannot be clearly defined how long you had been planning this series of offences, it is clear that this was not a last-minute decision.  There was a degree of pre-consideration of this offending and to some extent planning in that you arrived at the premises with a blue balaclava covering your facial features and carrying a knife.

10     When you arrived at the premises, you announced your arrival, saying to the female victim, 'I know you're in there.'  You endeavoured first to get through the bedroom window where she and the male victim were in bed.  You arrived at about 1.20 am.  The two-year-old child of the female victim was in another bedroom.  Unsuccessfully attempting to enter by the window, you turned your attention to the front door.  You damaged the flyscreen and you kicked in the door, causing damage to the door and a great deal of noise.

11     You entered the bedroom where your two victims, male and female were in bed.  You were wearing a balaclava and holding a knife.  Your female victim took a photograph.  That is Annexure A to the summary of prosecution opening.  It paints a chilling picture of you standing beside the bed with an image of part of the male victim who was lying in the bed at the time.  You said to the male victim, 'Who the fuck do you think you are in bed with my ex-missus'.  Your female victim then left the bedroom in fear and in order to protect her son in the next-door room.  You then said to the male victim, 'I'm going to stab you cunt.'  And you lunged at the male victim who was lying on the bed.

12     You then dragged the male victim from the bedroom and you told him that you were going to take him with your mates in your mate's car and leave him in the bush.  You paused at the door of the female victim's son's bedroom and the female victim told you, to 'Get the fuck out of my son's room right now.'  You then grabbed her handbag which was hanging on the door handle and said, 'I'm fucking taking this.'  That was the first part of the offence of attempted armed robbery.  The female victim said, 'No you're not' and you and the male victim then had a scuffle over the bag.  You then went outside with the male victim and took your balaclava off.  He said to you, 'It's me' and you then shook his hand and said, 'I'm not gonna stab you.'

13     The female victim was still in possession of her handbag.  She went out to the front of the property and asked you why you had kicked the door in and why you had had a knife in the house whilst her son was sleeping, saying, 'What would have happened if he'd woken up and seen that?'  That apparently incensed you and you said, 'I'm fucking taking this', as you grabbed the female victim's handbag once more and started to pull it away from her grip.  She clung on to it.  You then dragged her along the ground in an attempt to take it from her possession.  The male victim came to her aid and told you to stop.  You then let go of the handbag and walked towards the male victim and said, 'Have fun with her cunt', before punching the male victim in the mouth.  That is the offence of common assault to which you pleaded guilty.

14     A neighbour yelled from a nearby balcony, naming you and saying, 'Get off her and leave right now, I know who you are.  Don't ever come back here.'  That caused you to run away. That was the end of the incident. 

15     The female victim suffered some relatively minor injuries, being pain and abrasions to her ankles and wrist.  The injury to her ankle was as a result of you dragging her along the ground.

16     The male victim sustained a small cut inside his mouth, with a laceration on the inside of his bottom lip - that was observed by police who attended that night.

17     You were arrested later that day, during the early afternoon, hiding in the cupboard of an address in the Geelong area.  You were taken to the Geelong police station where you were interviewed.  You refused to answer any questions about the offending.  The female victim was reluctant to make a statement out of fear of reprisals from you, but eventually she did make a statement.  She commented to police that she was scared for herself and her child, that she was in shock and was scared for her son, that she left the bedroom because she was 'shitting' herself.  She was scared of you and had refused to talk about anything that had happened for the safety of her child and herself. 

18     She refused to make a statement for a second time because she was scared.  So, although she has not made a victim impact statement, it is clear that she was frightened of you as a result of the forced entry into her home and the presence of her child who she sought to protect.  It hardly needs comment that a person coming into a home in the early hours of the morning with a balaclava and armed with a knife and threatening to use the knife was calculated to cause terror in all of the occupants of the premises.  It was fortunate that the young child didn't directly witness exactly what was going on. 

19     The offending was despicable, callous, selfish and cowardly behaviour, ranking high on the scale of aggravated burglary offences, committed as an act of domestic violence towards a former female partner.  Your prior criminal history reveals some tendency towards violence

20     I now turn to matters personal to you. Your counsel provided me with a plea outline of submissions dated 9 March 2022, a report from Mr Ian Mackinnon,
Consultant Psychologist, dated 5 March 2022 and a letter from your grandmother with whom you had been living since the age of 16.  She describes in her letter your history of being kicked out of your mother's home at the age of 14, and how she offered you a stable home from the age of 16.  You have had the benefit of that since the age of 16.  Although submissions were made by your counsel as to social deprivation arising from the disruption of your childhood at the age of 10 when your parents separated, the example set by your father, who apparently was a drug user, and the fact that since the age of 10, you have had very little contact with him of any kind, and only some recent telephone contact as I understand it, in the last few years.

21     You have had very little contact with your mother and with your younger brother who lives with your mother.  So, I think it's fair to say that there has been social deprivation arising from that.  You clearly went off the rails immediately prior to being kicked out of the home.  It seems that there was concern about your drug taking and following your father's example, which led to you being put out on the street by your mother at the age of 14 and you leaving school apparently at the same age, couch-surfing for a couple of years and getting into drug taking.  All of that I think does add up to some degree of social deprivation.

22Your counsel has invited me to apply principles arising from the well-known case of Bugmy[1].  I see very little similarity between your social deprivation and the degree of social deprivation that was relevant in the case of Bugmy, which was described as profound.  I regard your social deprivation as relevant but falling well short of the kind of social deprivation that prompted the decision of the High Court in Bugmy.  I will take it into account in the instinctive synthesis, which is the process that I shall be applying in determining the appropriate sentence in your case.  I'll say a little bit more about that later.

[1]Bugmy v The Queen [2013] HCA 37

23Your counsel, quite properly, pointed to the plea of guilty which you indicated at an early stage in the process, at the first available opportunity.  That is I think consistent with remorse; I am not sure if it is necessarily supports a conclusion of remorse, but it is certainly consistent with it.  You have expressed remorse to Mr Mackinnon during the course of your consultation with him.  I am prepared to accept that you are remorseful.  Also, the plea of guilty indicates an acceptance of criminal responsibility.  In these COVID times, there is a utilitarian value to the plea which requires the court to give a measurable reduction in sentence as a result of your pleas of guilty, and I shall do that.

24Further, your counsel again quite properly pointed to the conditions of your incarceration up to now and the conditions that you can expect for any future period of incarceration.  The principle argument put forward by your counsel as I understood it revolves around your age, being 22 years.  You were 22 at the time of the offending.  You are what is referred to as a youthful offender and you fall to be sentenced as a youthful offender.  There are some well-established principles which apply to the sentencing of youthful offenders, where the courts look to rehabilitation as a significant, if not the most significant, sentencing principle.  It is a principle that applies to you, because of your youth.  The prosecution quite properly points to the balancing principle that where the offending is particularly serious, the extent to which there should be a mitigation of sentence should be reduced.

25It is well accepted by your counsel that this was very serious offending.  In particular, the aggravated burglary is a serious example of aggravated burglary in the context of domestic violence.  And whilst the other two offences don't rise to the same level of seriousness, the offence of attempted armed robbery was a serious offence.  The common assault is clearly towards the lower end of the scale.  But, as I will say to you in more detail in a few minutes, I do regard rehabilitation as an important consideration in your case.

26I have already referred to the question of social disadvantage, and it seems to me that although those social disadvantages that you have undoubtedly faced, have no doubt contributed to your criminal record, I don't regard Bugmy as being a case which has particular application in this case, beyond underscoring the fact that social disadvantage during formative years is not something that dissipates necessarily over time.  But you are still a young person.  It is clear that it has not dissipated in the sense that is still a relatively recent part of your life up to date.

27Another substantial submission that was put before me by your counsel was that Verdins principles apply to mitigate the moral culpability of your offending.  Much reliance was placed on the opinion expressed by Mr Mackinnon in his report where he said in the following terms, and I quote from p7 of Mr Mackinnon's report:

'Psychological State at Time of Offences (29/08/21):

In my opinion, at the time of the offences, Mr Meadows-Collisson was suffering with the following major diagnosable psychological disorders:

MIXED ANXIETY & DEPRESSION DISORDER (MADD)

POLY-SUBSTANCE ABUSE DISORDER (PSAD)‘

He goes on and I quote,

'In my opinion Mr Meadows-Collison's MADD and PSAD made significant contributions to his offending by degrading his ability to reason and make sound judgment, degrading his ability to give due consideration to the likely consequences of his actions, making him highly impulsive, fuelling paranoid and aggressive impulses, engendering a self-absorbed perspective and diminishing his awareness of his moral and community responsibilities. 

Mr Meadows-Collisson recalled that, during the period leading up to the offences on 29/08/21, he had regularly been using ice and Xanax.'

28Mr Mackinnon quotes you as saying, “I'd been awake for two weeks, so paranoid, edgy, angry easy, acting without thinking.”  That seems to be the only reference to any discussion between Mr Mackinnon and you about the lead-up to the offending. 

29As far as I can see, the report is based entirely, or almost entirely, on what you have told him during a single consultation which took place on 28 February 2022, via video link between Mr Mackinnon's office and the Marngoneet Correctional Centre.  He doesn't say for how long the interview went.  But he does say that he'd been provided with the following documents: a Victoria Police preliminary brief with summary and charge sheet, and your LEAP criminal record dated 27 September 2021. 

30He says that he had been informed of the charges against you.  There is no reference to Mr Mackinnon having recourse to any previous medical, psychiatric, psychological, pre-sentence or community corrections assessment reports, or any other documents at all.  There is no reference in his report to any discussion beyond that to which I have referred, to any discussion with you about your motivation for the offences.  In particular, he makes absolutely no reference to the communications you had with the female victim in the lead-up to the offending where you threatened to “drop” any male that you caught your female victim with.

31So there is no analysis by Mr Mackinnon of the facts of the offending itself, or the juxtaposition between the threats you made in advance of the offending and the offending itself.  The opinion that he expresses seems to me to be an extraordinarily strident and confident opinion based on slender foundations.  Indeed, it is very difficult to see what his reasoning was in coming to his conclusion.  Other than just an impression of you, which he summarises on p5 after he refers to the fact that you were suffering from those two major diagnosable psychological disorders. 

32Under the heading, 'Overview of clinical assessment', he provides as follows:

‘Behaviour:    polite and co-operative.
Speech:        restricted.
Mood and Affect:     anxious and depressed.
Form of Thought:     normal.
Thought Content:     normal.
Perception:               normal.
Sensorium and Cognition: normal.

Insight:   normal.’

33He describes your functional intelligence and general cognitive functioning as falling within normal adult range and your ‘immediate short and long-term memory faculties appeared to be intact’ and you were ‘correctly orientated to time, place, person and purpose.’

34He describes the degree of the mixed anxiety and depression disorder, that he had diagnosed as chronic without clearly explaining why.  And he goes on to say, and I quote:

‘In my opinion, Mr Meadows-Collisson’s MADD is currently manifested at a mild to moderate level and he is likely to suffer varying levels of anxiety and depression, especially in response to new life stressors and challenging circumstances. [I note that Mr Meadows-Collisson reported that he is currently being treated with Avanza, an antidepressant medication].'

35With that assessment that you were manifesting mixed anxiety and depression disorder at a mild to moderate level, it is very hard to see how he is able to spring from that to what I have described as the strident and confident opinion about the link between the two mental disorders that he found and the offending conduct.  He does not distinguish the contribution between the mixed anxiety and depression disorder and the polysubstance abuse disorder in forming his opinion as to what he describes as the ‘significant contributions’ of those mental disorders to your offending conduct.

36In the absence of any such clear analysis, it is impossible for me to be persuaded that any of the Verdins principles apply.  I note that later in the report Mr Mackinnon said that you will probably cope well enough if you were in prison for a significant period of time.  So, it is not suggested that any of these disorders are likely to impact significantly upon your period of incarceration.  The polysubstance abuse is presently in remission, you having been deprived of access to drugs during the period that you have been on remand.  I am unpersuaded that any of the Verdins principles apply and I do not intend to apply them.  That is not to say that the diagnoses are irrelevant.  It is, I think, important to take into account the nature of the conditions described by Mr MacKinnon in the instinctive synthesis process that underpins my sentencing discretion.

37I have no doubt that you were affected by drugs in the period leading up to and during the offending.  No doubt that would have emboldened you to some extent.  But I am not prepared to treat that as any kind of mitigation.

38The next point relied upon by your counsel was that, by reference to various cases to which he drew my attention and to the sentencing snapshot applying to offending of this nature, current sentencing practice gives a wide discretion, particularly dealing with young offenders.  That leads to the submission by your counsel that I had the sentencing option of imposing a sentence which permitted me to combine a sentence of imprisonment with a community correction order.  Your counsel also conceded that that was not the only alternative, and that a period of imprisonment with a shorter than usual non-parole period would give you a period on parole that would assist your rehabilitation.

39It seems to me that overall one must be guarded about your prospects of rehabilitation, although I do note that there was a period of about two and a half years between the end of 2017 and July of 2020, when you did not appear before the courts.  Quite when you committed the offences for which you appeared in July of 2020 is not clear, but nevertheless you had a period of not appearing before the courts which is significant, given that your criminal record from the age of 15 through to the end of 2017 was a bad one and there were many court appearances and many dispositions, including custodial, during that period.  So there is, I think, some hope for your rehabilitation and that hope is, I think, also underscored by your still young age.  You are about to turn 23 years of age, and you still have time to turn your life around. 

40In my opinion, these offences are far too serious to impose anything less than a sentence of imprisonment with a non-parole period, but I do take into account all the factors that I have endeavoured to identify as reducing the sentence that would otherwise be appropriate for what I have already described as these very serious offences, particularly the aggravated burglary.  It is important for the court to denounce conduct of this kind, consistent with the authorities that speak of the prevalence of domestic violence and the offences of aggravated burglary committed in the context of domestic violence, with former partners, committing offences out of revenge or some other motivation arising from the breakup of a relationship. 

41General deterrence is an important feature of sentencing and I must punish you justly for the offending.  I think that given that you have a prior conviction for aggravated burglary as well as for burglary, there is a need for individual deterrence in the sentencing process.  It is not a sentencing exercise that I have found easy.  Striking the right balance between all of those sentencing considerations and giving proper value to the need to promote your rehabilitation has not been an easy one for me.  But, having looked at the cases to which my attention was drawn and seeing how other courts have dealt with not dissimilar offending in recent times, I have endeavoured to structure the sentences in a way which balances each of those sentencing considerations.  I now intend to proceed to impose sentence upon you.

42Bailey Meadows-Collisson, on Charge 1 of aggravated burglary, I sentence you to imprisonment for two years and 10 months, that is 34 months. 

43On Charge 2 of attempted armed robbery, I sentence you to imprisonment for a period of 16 months. 

44On Charge 4 of common assault, I sentence you to imprisonment for a period of four months. 

45I order that three months of the sentence on Charge 2 and one month of the sentence on Charge 3 be served cumulatively upon one another and upon the sentence of 34 months on Charge 1. 

46That makes a total effective sentence of 38 months, or three years and two months' imprisonment.

47I order that you serve a period of 21 months before you become eligible for parole.  Now that is, and I am sure you appreciate, a significantly shorter non-parole period than we would ordinarily apply in a case such as this, and given the head sentence of 38 months. 

48As far as the related summary offence is concerned, I impose a fine of $3,000. 

49But for your pleas of guilty I would have sentenced you to imprisonment for a period of 54 months, that is four years and six months, with a non-parole period of 36 months or three years. 

50I declare 206 days pre-sentence detention as time served under the sentences that I have imposed to be deducted administratively from the sentence you will actually have to serve.

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51HIS HONOUR:  Are there any other matters counsel?

52COUNSEL:  No, Your Honour.

53HIS HONOUR:  Thank you.  Adjourn the court please.