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R v Collins, John

R v Collins, John

Case [2017] NSWDC 281 11 August 2017

Criminal Liability

Sentencing

Unconscionable Conduct

Mental Health

Special Circumstances

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v COLLINS, John [2017] NSWDC 281
Hearing dates: 11 August 2017
Date of orders: 11 August 2017
Decision date: 11 August 2017
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full time custodial sentence. Full details at [163]

Catchwords: Criminal – sentence – indecent assault – buggery – possess child abuse material – historical offences occurring in the 80s – Form 1 assault offences similar in seriousness to the principal offence – 60 years old – prior record of offending similar to the current matter – no prior sexual assault charges at the time of the historical sexual assault offences – much younger victim – victim impact statement – high risk of re-offending – little contrition for the offending – sentencing according to the standards at the time of the offending – historical assessment of cases involving the offence of buggery – paedophilic disorder as a mental disorder – mental illness/abnormality connected with the offences – possess child abuse material whilst on bail – Interpol Baseline Classification System – the utilitarian value for the pleas of guilty – specific deterrence and general deterrence where offender has a sexual interest in young children as well as diagnosed mental health condition – totality of offending – ‘special circumstances’.
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Child Protection (Offenders Registration) Act 2000
Cases Cited: R v Anning [2014] NSWDC 359
Attorney-General’s Application (No 1) of 2002, (2002) 56 NSWLR 147
Barrett (NSWCCA, 3 March 1997, unreported)
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Jacobs [2011] NSWDC 34
McIntosh v R [2015] NSWCCA 184
Mill v R (1988) 166 CLR 59
Pearce v R (1998) 194 CLR 610
R v Brown [2012] NSWCCA 199
R v Denham [2015] NSWDC 21
R v Engert (1995) 84 A Crim R 67
R v Fox [2011] NSWDC 250
R v NJR [2002] NSWCCA 129
R v Roberts [2003] NSWCCA 309
Regina v Barry [2001] NSWCCA 304
Regina v McIntosh [2011] NSWDC 160
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Veen v R (No 2) [1988] HCA 14
Category: Sentence
Parties: Regina
John Collins
Representation: Counsel:
Mr.Metcalfe – Director of Public Prosecutions
Mr. Santisi – Offender

File Number(s): 2014/003555102016/00363495
Publication restriction: No publication of the name of the victim

SENTENCE

HIS HONOUR: The prisoner John William Collins appears today for sentence in relation to a number of offences committed approximately between 1 February 1979 and 31 December 1980 in relation to a then young male victim, hereinafter to be referred to as XX or ‘the victim’. He also appears for sentence in relation to an offence committed whilst on bail in relation to the matters with which I am concerned relating to the victim from 1979 and 1980. The detail of the charges with which I am concerned and for which the prisoner is to be sentenced today is as follows.
Firstly, count 1 on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Collins, John

Details

AGLC: R v Collins, John [2017] NSWDC 281
Case: [2017] NSWDC 281
Decision Date: 11 August 2017

CaseChat Overview and Summary

The case before the court was an appeal against sentence brought by the respondent, John Collins, following his conviction for historical sexual offences against a child, possession of child abuse material, and possession of child abuse material while on bail. The primary legal issue before the court was whether the original sentence was manifestly excessive or inadequate. The appeal focused on the sentence's length, given the age of the offences, the respondent's age at the time, and his mental health status. The court also had to consider the principle of totality and the respondent's risk of reoffending.

The court examined the sentencing principles and the precedents set by the Court of Appeal in similar cases. It noted that the respondent's offences were historical and occurred when he was much younger. The court also considered the respondent's lack of prior sexual assault charges at the time of the offences, his mental health issues, and the age of the victim. The court found that the original sentence was not manifestly excessive, given the totality of the offending, the respondent's risk of reoffending, and the need for specific and general deterrence. The court also considered the respondent's possession of child abuse material while on bail, which it deemed a serious aggravating factor.

The court upheld the appeal against sentence, finding that the original sentence was inadequate. It imposed a full-time custodial sentence, with specific details outlined at [163]. The court took into account the 'special circumstances' of the case, including the historical nature of the offences, the respondent's age at the time of the offences, and his mental health status. The court also considered the need for specific and general deterrence, given the respondent's sexual interest in young children and his diagnosed mental health condition.

The court made clear orders regarding the sentence, specifying that the respondent would serve a full-time custodial sentence. The court provided detailed reasons for its decision, ensuring that the sentence reflected the seriousness of the offences, the need for deterrence, and the respondent's risk of reoffending. The court's decision underscores the importance of considering the totality of offending, the respondent's mental health status, and the need for both specific and general deterrence in sentencing for historical sexual offences.

Orders

Orders of the court

Full time custodial sentence. Full details at [163]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Collins, John [2017] NSWDC 281

Most Recent Citation

R v Lee, Ernest John [2018] NSWDC 109

Cases Citing This Decision

R v Lee, Ernest John [2018] NSWDC 109
Citation 1

…1] NSWCCA 84 R v AJB [2007] NSWCCA 51 R v Anning [2014] NSWDC 359 R v Berg [2004] NSWCCA 300 R v BJW [2000] NSWCCA 60 R v Collins [2017] NSWDC 281 R v Gavel [2014] NSWCCA 56 R v MJR [2002] NSWCCA 129 R v Thomas [2007] NSWCCA 269 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Van Ryn [2016] NSWCCA 1 R v Wilson [200…

See all citing cases →

Cases Cited

Mcintosh v R [2015] NSWCCA 184
Citation 1 (Para 2)

…es that are set out in the judgment of Judge Finnane in McIntosh [2011] NSWDC 160 and in the review of that decision by the Court of Criminal Appeal, [2015] NSWCCA 184. The schedule in the latter decision for indicative sentences in respect of McIntosh committed between 1977 and 1983, in the re-sentencing exercise b…
R v Cable [2015] NSWDC 93
Citation 2 (Para 7)

…R v Cable [2015] NSWDC 93. This is, of course, a case involving a Marist brother who had 19 victims, with offences committed over two decades and in total dozens and dozens of offences either dealt with on indictment, by committal for sentence and/or on a Form 1. It included, in relation to the matters for which h…
R v Denham [2015] NSWDC 21
Citation 3 (Para 8)

…Another District Court decision to which I was referred was R v Denham [2015] NSWDC 21, which included two counts of buggery and 18 counts of indecent assault, with 23 matters on a Form 1. This was a case again involving a person in ‘holy orders’ as a priest, with offences committed largely between 1975 and 1979.…
R v Anning [2014] NSWDC 359
Citation 4 (Para 9)

…There is also the decision of Anning [2014] NSWDC 359, a decision of my own and a relatively recent decision of the Court of Criminal Appeal of R v Brown [2012] NSWCCA 199 concerning an Anglican priest or minister, with 27 counts for sentence and 20 matters on a Form 1, including two counts of buggery, many acts of…
R v Brown [2012] NSWCCA 199
Citation 5 (Para 9)

…e is also the decision of Anning [2014] NSWDC 359, a decision of my own and a relatively recent decision of the Court of Criminal Appeal of R v Brown [2012] NSWCCA 199 concerning an Anglican priest or minister, with 27 counts for sentence and 20 matters on a Form 1, including two counts of buggery, many acts of inde…
R v Fox [2011] NSWDC 250
Citation 6 (Para 10)

…Other District Court judgments again dealing with offences committed in the late ‘70’s, early 80’s, including R v Fox [2011] NSWDC 250 and Jacobs [2011] NSWDC 34.…
Regina v Andrew Dean McIntosh [2011] NSWDC 160
Citation 7 (Para 2)

…The table of cases that are set out in the judgment of Judge Finnane in McIntosh [2011] NSWDC 160 and in the review of that decision by the Court of Criminal Appeal, [2015] NSWCCA 184. The schedule in the latter decision for indicative sentences in respect of McIntosh committed between 1977 and 1983, in the re-sent…
R v Jacobs [2011] NSWDC 34
Citation 8 (Para 10)

…her District Court judgments again dealing with offences committed in the late ‘70’s, early 80’s, including R v Fox [2011] NSWDC 250 and Jacobs [2011] NSWDC 34.…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 9 (Para 101)

…rper focus the consideration of the principles that were summarised by the Chief Judge at Common Law, Justice McClellan in the decision of De La Rosa [2010] NSWCCA 194, particularly at [177]-[178].…
R v Roberts [2003] NSWCCA 309
Citation 10 (Para 3)

…Court of Criminal Appeal decisions of Roberts [2003] NSWCCA 309; Barry [2001] NSWCCA 304; unreported decision of Barrett from the Court of Criminal Appeal of 3 March 1997, it does not have a neutral citation; the decision of Throw from the Court of Criminal Appeal of 26 April 1985 and Hill of 11 July 1999. Each of t…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 11 (Para 131)

…and the matters on the Form 1 in respect to the committal for sentence matter, I have had regard to Attorney-General’s Application (No 1) of 2002, (2002) 56 NSWLR 147. In taking into account matters on the Form 1, the Court of Criminal Appeal held in that particular guideline judgment and it has been held subsequentl…
R v MJR [2002] NSWCCA 129
Citation 12 (Para 65)

…ing at the time that the offending with which I am concerned occurred. Particularly if the practice has moved adversely to the prisoner ( R v NJR [2002] NSWCCA 129, particularly at [69], [71]-[105].)…
Regina v Barry [2001] NSWCCA 304
Citation 13 (Para 3)

…Court of Criminal Appeal decisions of Roberts [2003] NSWCCA 309; Barry [2001] NSWCCA 304; unreported decision of Barrett from the Court of Criminal Appeal of 3 March 1997, it does not have a neutral citation; the decision of Throw from the Court of Criminal Appeal of 26 April 1985 and Hill of 11 July 1999. Each of t…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 14

…309 Regina v Barry [2001] NSWCCA 304 Regina v McIntosh [2011] NSWDC 160 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Veen v R (No 2) [1988] HCA 14 Category: Sentence Parties: Regina John Collins Representation: Counsel: Mr.Metcalfe – Director of Public Prosecutions Mr. Santisi – Offender File Number(s): 2014/00355510…
Pearce v The Queen [1998] HCA 57
Citation 15 (Para 136)

…decision of the High Court of Australia in Mill v R (1988) 166 CLR 59, particularly at [62]-[63], but also the judgment of the majority in Pearce v R (1998) 194 CLR 610, particularly at [45].…
Mill v The Queen [1988] HCA 70
Citation 16 (Para 136)

…must be imposed for substantive offending requiring discreet penalties to be imposed. I note the decision of the High Court of Australia in Mill v R (1988) 166 CLR 59, particularly at [62]-[63], but also the judgment of the majority in Pearce v R (1998) 194 CLR 610, particularly at [45].…
Veen v The Queen (No 2) [1988] HCA 14
Citation 17

…4 Regina v McIntosh [2011] NSWDC 160 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Veen v R (No 2) [1988] HCA 14 Category: Sentence Parties: Regina John Collins Representation: Counsel: Mr.Metcalfe – Director of Public Prosecutions Mr. Santisi – Offender File Number(s): 2014/003555102016/00363495 Publication rest…

Legislation Cited

Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention (from Para 7)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 14)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v COLLINS, John [2017] NSWDC 281
Hearing dates:	11 August 2017
Date of orders:	11 August 2017
Decision date:	11 August 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full time custodial sentence. Full details at [163]
Catchwords:	Criminal – sentence – indecent assault – buggery – possess child abuse material – historical offences occurring in the 80s – Form 1 assault offences similar in seriousness to the principal offence – 60 years old – prior record of offending similar to the current matter – no prior sexual assault charges at the time of the historical sexual assault offences – much younger victim – victim impact statement – high risk of re-offending – little contrition for the offending – sentencing according to the standards at the time of the offending – historical assessment of cases involving the offence of buggery – paedophilic disorder as a mental disorder – mental illness/abnormality connected with the offences – possess child abuse material whilst on bail – Interpol Baseline Classification System – the utilitarian value for the pleas of guilty – specific deterrence and general deterrence where offender has a sexual interest in young children as well as diagnosed mental health condition – totality of offending – ‘special circumstances’.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Child Protection (Offenders Registration) Act 2000
Cases Cited:	R v Anning [2014] NSWDC 359 Attorney-General’s Application (No 1) of 2002, (2002) 56 NSWLR 147 Barrett (NSWCCA, 3 March 1997, unreported) Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Jacobs [2011] NSWDC 34 McIntosh v R [2015] NSWCCA 184 Mill v R (1988) 166 CLR 59 Pearce v R (1998) 194 CLR 610 R v Brown [2012] NSWCCA 199 R v Denham [2015] NSWDC 21 R v Engert (1995) 84 A Crim R 67 R v Fox [2011] NSWDC 250 R v NJR [2002] NSWCCA 129 R v Roberts [2003] NSWCCA 309 Regina v Barry [2001] NSWCCA 304 Regina v McIntosh [2011] NSWDC 160 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Veen v R (No 2) [1988] HCA 14
Category:	Sentence
Parties:	Regina John Collins
Representation:	Counsel: Mr.Metcalfe – Director of Public Prosecutions Mr. Santisi – Offender
File Number(s):	2014/003555102016/00363495
Publication restriction:	No publication of the name of the victim