Director of Public Prosecutions v Coleman (a pseudonym)
[2023] VCC 926
•6 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BOBBY COLEMAN (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2023 | |
DATE OF SENTENCE: | 6 June 2023 | |
CASE MAY BE CITED AS: | DPP v Coleman (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 926 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence after trial; Sexual penetration of a step-child; sexual assault of a child under the age of 16; Victim 7 – 9 years of age; Significant impact on victim and her family; Standard sentence offences; General deterrence; Denunciation; Protection of the community; Prospects for rehabilitation assessed as quite good; Whether sentence should allow for significant period subject to supervision on parole; Whether in the interests of justice to impose parole period less than 70% of head sentence.
Legislation Cited: Evidence (Miscellaneous Provisions) Act 1958 (Vic); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Torrefranca v The Queen [2021] VSCA 157; DPP v Ashwood [2022] VCC 1896; [2022] VCC 1583; Weir v The King [2023] VSCS 113; DPP v Waring [2021] VCC 1419; DPP v Castleton; McPherson v The Queen [2021] VSCA 53.
Sentence: Total effective sentence of 9 years 6 months’ imprisonment, non-parole period 5 years 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Dr J. Harkess | Office of Public Prosecutions |
| For the Accused | Ms E. Clark with Ms L. Bull | James Dowsley & Associates |
HIS HONOUR:
Introduction
1Bobby Coleman,[1] on 17 March 2023 a jury found you guilty of one charge of sexual penetration of a stepchild and two charges of sexual assault of a child under the age of 16.
[1] A pseudonym.
2It is my task now to sentence you for that offending.
Background
3You were born in October 1969 and are now 53 years of age. In 2014 you married Sara Anderson.[2] Sara Anderson had two children from a previous relationship; the complainant, Rachel Davis,[3] who was born in March 2011, and Shaun Davis,[4] who is approximately two years older than Rachel. A third child, Ruby Coleman,[5] was born to you and Sara Anderson in 2016.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
4You had previously been married and there were three children from that relationship; a daughter aged 19 and two sons aged 26 and 23. None of those children resided with you.
5Between 9 October 2018 and 5 October 2020 you, Sara Anderson, Shaun Davis, Rachel Davis and Ruby Coleman lived in Frankston South. It is in that residence that this offending against Rachel occurred. Rachel was between seven and nine years of age at that time.
Offending
6The offending comprised three incidents.
7The first incident relating to Charge 1 - sexual penetration of a stepchild - occurred when you put the complainant to bed and laid down on her bed next to her. As you did this you quickly inserted your finger in and out of the complainant’s vagina, which she said made her feel “grossed out and uncomfy”. It was alleged that you had done this “once or twice”. The incident the subject of the charge was particularised as the second occasion.[6]
[6] See Video Audio Recorded Statement, 12 November 2020 Q’s 241-258 (‘VARE’).
8The second incident relating to Charge 2 - sexual assault of a child under 16 - occurred when the complainant was in bed and you got under the bedcovers and lay beside her. You then took your pants down and placed the complainant’s hand on your penis. She tried to move her hand away, but you kept putting it back on your penis. You used her hand to masturbate you until you ejaculated. This kind of conduct was alleged to have happened a number of times,[7] however the occasion the subject of this charge was particularised as described at question 143 of the complainant’s video audio recorded statement (‘VARE’).[8]
[7] See VARE Q’s 135-152.
[8] Ibid Q 143.
9The third incident relating to Charge 3 - sexual assault of a child under 16 - occurred when the complainant was lying with you on her bed, on top of the covers because it was hot. You put your hand into her pyjama shorts and touched the outside of her vagina. You then rubbed her vagina in a back-and-forth motion. Rachel described this conduct as occurring a number of times.[9] The second occasion on which this occurred as Rachel described it at questions 84-92 was particularised as the charged act.[10]
[9] Ibid Q’s 77-98.
[10] Ibid Q’s 84-92.
Complaint
10Rachel Davis complained about your offending to her mother on the night of 11 November 2020. She made the VARE on 12 November 2020. You were spoken to by Sara Anderson in a pretext call on 13 November 2020, which was played to the jury. That same day you were interviewed by police. In both the pretext call and the record of interview, you strenuously denied the allegations.
11On 8 March 2023, you pleaded not guilty to all three charges and a jury was empanelled. The jury delivered unanimous verdicts of guilty to all charges on 17 March 2023 and you were remanded in custody until 26 May 2023 for your plea hearing.
Other misconduct evidence
12In addition to the charged acts, the prosecution relied on a number of uncharged acts in order to establish that first, you had a sexual interest in Rachel and that you were willing to act on that interest and, second, to provide context that would enable a more realistic assessment of the charged incidents.
13That evidence comprised first, the conduct of the type that constituted Charges 1, 2 and 3 but which was not charged.
14Second, Rachel alleged that whilst you were on her bed, you would often place her on top of you and rub your penis against her vagina.
15Third, you would have Rachel sit on your lap on an armchair in the lounge room and would position her so that her vagina would touch your penis over your clothing. Rachel said that you would push her back and forth so that your penis would rub against her vagina.
16Fourth, Rachel described how you would shower with her. You would stand behind her, holding her shoulders and push your penis into her back. You would also use soap to wash her vagina and bottom.
17Fifth, Rachel suggested that whilst playing in a makeshift cubby house in the home on Frankston South, you would come in and lay beside her and on one occasion, kissed her on the mouth and put your tongue inside her mouth.
18Consistent with the jury’s verdict, I am satisfied that the other misconduct described by Rachel occurred.
19It is important to point out however, that you were not charged with, and you will not be punished for, the other misconduct which I have just described. For the purposes of sentence, that evidence merely establishes that the acts the subject of the three charges did not occur in isolation, and therefore helps to place your offending in its proper context.
Victim Impact
20Victim impact statements were submitted on behalf of Rachel Davis, by her mother Sara Anderson and also by Rachel’s older brother Shaun Davis. Clearly, Rachel has struggled, and continues to struggle to deal with the impact of what you have done to her. She struggles to sleep, she has become reticent to give and receive affection and appears to feel unsafe in her own home. Her mother sees her as having had her childhood taken away from her and fears that she has been scarred for life. She believes it will take a long time for Rachel to learn to trust again.
21The impact on the rest of the family has likewise, been devastating. Shaun has developed severe social anxiety and has undertaken intensive counselling. The complainant’s mother blames herself for trusting you. She has developed clinically diagnosed depression and anxiety and has needed professional help to recover. Even so, she says what she has gone through is nothing compared to that which her daughter has suffered.
Procedural chronology
22This offending came to light in November 2020. You were committed to this Court in October 2021. During 2022 there were a number of applications made under s 32C of the Evidence (Miscellaneous Provisions) Act1958 and some preliminary examinations. The complainant was cross-examined at a Special Hearing on 16 August 2022. The trial commenced on 7 March 2023.
23You have been remanded in custody since the date of verdict, 17 March 2023.
Personal history
24You were born in October 1969 and are now 53 years of age. You were between 49 and 51 years of age when you committed these offences. Importantly, you have no previous or subsequent convictions.
25You grew up in the western suburbs of Melbourne, where your father worked as a butcher and your mother worked as a cleaner. You have one elder brother who lives overseas but with whom you remain in contact. You were said to be close to your “sister” who in fact was a cousin, who had been adopted by your parents after her mother had passed away when she was very young.
26You told your assessing psychologist that your relationship with your parents was somewhat emotionally distant, but nevertheless relatively normal and not marked by substance abuse or family violence. You were however sexually abused when you were between the ages of about seven to ten. That occurred in the context of attending regularly at a local train Museum. You sought counselling in respect of the impact of that abuse in 2019.
27You did reasonably well at school both socially and academically. You particularly enjoyed sport, participating in athletics and playing football at state level. When you were about 15 years of age your parents separated and your home life became less stable, which was reflected in your schooling. You left school at the end of Year 10 and went on to work in a variety of jobs for a number of years, such as a stable hand, an aged care worker and since 2011 you have run your own IT business. In that business, which appears to have become quite successful, you supplied and repaired computers for home users and businesses.
28You were first married in the mid-1990s and as I have indicated there are three children of that relationship. Those children are now aged 29, 26 and 22. Each of your children and your daughter in law have provided helpful references in which they confirm their continuing support for you in spite of this offending. Your children each acknowledge the fact that you brought them up as a single parent after separating from their mother and that you worked hard and made a lot of sacrifices for their benefit. Your oldest son has been working in your business and is now operating it on his own account.
29You met Sara Anderson in 2013 and married in 2014. In addition to the complainant and her older brother, there was one child of that relationship who was born in about 2016.
30Quite a number of written personal references were tendered on your behalf. Each of the referees indicated that they were aware that you had been convicted of child sex offences. In contrast to your offending, those references provide a very different perspective of your character.
31Your current partner has known and worked with you over the last 12 or so years. She has seen you go out of your way to assist others on many occasions. She visits you in custody and remains very supportive. A friend attests to your caring and compassionate nature. Nine further references were provided by clients of your business, many of whom have come to know you personally. It is evident from those references that you have impressed with your dedication, expertise and willingness to work hard to ensure that the IT services you provided met their needs.
32You were assessed for the purposes of your plea by a forensic psychologist, Dr Dion Gee who provided a detailed report of 15 May 2023.
33You presented as a man with average to above average intellectual functioning. There is no suggestion of any substance abuse issues. Indeed, it was not suggested that you suffer any particular psychiatric or psychological disorder, although it was speculated that your experience of childhood sexual abuse could make you vulnerable to act in an aberrant manner.
34Dr Gee was unable to interrogate the “causal mechanisms”[11] of your offending because you denied engaging in the conduct which constituted the charges of which the jury found you guilty. It was also difficult to ascertain an informed account of your risk profile and potential future risks from a “best practice perspective” [12] because you are adamant you did not commit these offences.
[11] Report, Dr Dion Gee, 15 May 2023 at [20].
[12] Ibid.
35Nevertheless, in spite of that significant qualification, Dr Gee assessed you as having a low risk of sexually reoffending in the future – that is to say you would be much less likely to reoffend than a typical convicted sexual offender.
36You say that you would be happy to undertake sex offence specific treatment as long as it is not seen as an admission of guilt. Dr Gee makes a number of treatment recommendations to facilitate your longer term rehabilitation. I will direct that a copy of his report be provided to the Office of Corrections.
Submissions
37Ms Clark, who appeared with Ms Bull on your behalf, accepted that the jury’s verdict represented an acceptance of the Crown case and that case could form the factual basis for sentence. It was acknowledged that these were serious offences, particularly having regard to the age of the victim, the period of time over which the offending occurred and the breach of trust involved in carrying out the offending. Moreover the offending had a significant impact on the victim and her family.
38That said, counsel argued, essentially by reference to a lack of aggravating factors, that your offending could be characterised as below the mid-range of seriousness. There was no overt violence, no threats to secure silence and the acts constituting the offending were of quite short duration, particularly in respect of Charge 1.
39Your counsel pointed to Dr Gee’s opinion that your early formative development was likely compromised by childhood sexual abuse. It was suggested that your “intimacy deficits, emotional/behavioural misregulation and to a lesser degree cognitive distortions” could have made you vulnerable to act in an aberrant manner. It was not suggested however that there was any impaired mental functioning such as to attract the principles in Verdins[13] case.
[13]R v Verdins & Ors (2007) 16 VR 269.
40This was the first time that you had ever been imprisoned and you were likely to find it difficult. On the basis of Dr Gee’s assessment, you are a low risk of reoffending sexually, you have indicated a willingness to participate in sexual offence specific treatment and you are unlikely to ever be placed in a position where you would commit an offence of this kind in the future. Those matters taken with your very strong family support, your excellent work and business history and your lack of criminal history your prospects for rehabilitation should be assessed as being very good.
41It was also submitted that this was not a case where your previous good character was closely connected with your offending and accordingly your good character should attract some reasonable weight,[14] all the more so, given the very strong family support you are fortunate to have.
[14] Torrefranca v The Queen [2021] VSCA 157 at [38]-[39].
42It was submitted that the sentence of imprisonment imposed should allow for the possibility of a significant period on parole, where your reintegration back into the community could be supervised.
43Dr Harkess submitted that your offending was very serious, taking into account the following considerations:
(a) “The offending involved a gross breach of trust and an abandonment of your responsibility to protect the complainant and to keep her safe from harm.
(b) The offending was a grave exploitation of the power which a parent has over a child.
(c) The offending was systemic, occurring over a two year period. It was not an isolated incident.
(d) There was a significant age gap between the complainant and Bobby Coleman.
(e) The offending has had a profound effect on the complainant and her family”.[15]
[15] Prosecution submissions on sentence at [8].
44It followed that your moral culpability should be regarded as high.
45Having regard to those matters the seriousness of this offending did not fall below the mid-range as was suggested by your counsel.
46It was submitted that you were clearly not remorseful and had shown no insight.
47Initially, it was submitted that your good character should carry “little to no weight”, however It was accepted in discussion that in your circumstances there was some reasonable scope for good character to weigh in the sentencing calculus.
48Nevertheless, this offending involved significant sexual abuse of a child aged between seven and nine involving a gross breach of trust which required the imposition of a term of imprisonment which served to denounce what you did and deter others.
Consideration
49The maximum penalty for the offence of sexual penetration of a stepchild is 25 years imprisonment. By virtue of s 50D(3) of the Crimes Act 1958 the specified standard sentence for that offence is 10 years.
50The maximum penalty for the offence of sexual assault of a child under the age of 16, is 10 years imprisonment. By virtue of s 49D(2A) of the Crimes Act 1958, the specified standard sentence is 4 years imprisonment.
51I should explain the significance of the fact that each of these offences are standard sentences. The standard sentence is a legislative guidepost to be taken into account in much the same way as other legislative guideposts such as the applicable maximum penalty or current sentencing practice.
52Section 5A(b) of the Sentencing Act 1991[16] specifies that a standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
[16] Sentencing Act 1991 (Vic) s 5A(b).
53As s 5B(3)[17] makes clear, the standard sentence does not limit the matters that a court is otherwise required or permitted to take into account in determining the appropriate sentence, nor does it affect the instinctive synthesis approach.
[17] Ibid s 5B(3).
54If I determine that it is in the interests of justice to impose a shorter non-parole period than specified in s 11A(4)(b) of the Sentencing Act (70% of the head sentence)[18] I must give reasons for doing so. Likewise, I must state how the sentence imposed relates to the standard sentence.
[18] Ibid s 11A(4)(b).
55Finally, I must not have regard to sentences previously imposed for this type of offending, unless they involve standard sentence offences.
56As to guidance provided by sentencing decisions for this kind of offending involving standard sentence offences I was referred to five previous decisions - DPP v Ashwood,[19] Weir v The King,[20] DPP v Waring,[21] DPP v Castleton[22] and McPherson v The Queen.[23]
[19] DPP v Ashwood [2022] VCC 1896; [2022] VCC 1583.
[20] Weir v The King [2023] VSCS 113.
[21] DPP v Waring [2021] VCC 1419.
[22] DPP v Castleton [2022] VCC 382.
[23] McPherson v The Queen [2021] VSCA 53.
57For the most part, these decisions were not relevantly similar or instructively different to this case. The variation in pleas, age of complainants, type of sexual activity, the number of charges and personal circumstances makes any meaningful comparison beyond a general impression, difficult. I did derive some assistance however as to principle, from the discussion on standard sentences for offences of this nature in McPherson.[24] There, Priest JA and T Forrest JA, in the context of a charge relating to sexual penetration of a child under 12, stated:
The standard sentence is designed to represent a ‘mid-range’ example of this offence, however, the offence covers such a wide range of sexual misconduct as to make the notional ‘mid-range’ very difficult to identify. The misconduct can be penetration by finger, penis or tongue, or by an object. It can be momentary or protracted. It can be committed on all ages up to 12. The impact on the victim can be manageable or catastrophic. This is not to say the phrase is meaningless — it must be given its place in the sentencing calculus — but it is an intangible concept, and judges ought to be wary of affording it too much weight in the sentencing exercise.[25]
[24] McPherson v The Queen [2021] VSCA 53.
[25] Ibid [31].
58Accepting that the ‘mid-range’ is difficult to locate, I tend to the view that the lack of some of the aggravating features this Court unfortunately too often sees in these sorts of cases, places the offending somewhat below the mid-range. However, that is not for a moment to unduly minimise the gravity of your offending. These are inherently serious offences. As was said in McPherson,[26] there are no trivial examples of offences involving sexual penetration of a young child.
[26] Ibid.
59The prosecutor’s submissions as to the factors that underline the seriousness of your offending are well made. The impact on your stepdaughter who was 7 - 9 years of age at the time has been devastating – there is no need to presume harm. There was indeed a gross breach of hers, and her mother’s, trust in you. Moreover, these were not isolated acts.
60As has been said many times before, this Court cannot ignore the community’s abhorrence of the sexual exploitation of children by those entrusted with their care. In particular, incest is an offence which has the capacity to destroy families and leave lifelong psychological scars. It appears that is exactly what your offending is likely to have achieved.
61General deterrence, to some extent specific deterrence, and denunciation must be prominent purposes in sentencing you for these offences against your young stepdaughter. You also fall to be sentenced as a serious sexual offender in respect of the third charge. The principal purpose in sentencing you in respect of that charge will therefore be to ensure protection of the community.
62As I indicated during discussion on the plea one important consideration in your favour is the level of support you enjoy from your adult children, your partner and your friends. In the case of child sex offenders, in my experience at least, such support is not particularly common. It seems to me that support provides quite a firm foundation from which you can work towards your rehabilitation.
63Taken together with your lack of prior convictions, Dr Gee’s findings as to your low risk of reoffending and your productive history in work and business, I am prepared to accept that your prospects for rehabilitation are likely to be quite good. I make that finding in spite of your denial of the offending.
64In my view, that finding in turn justifies a further finding that it would not be in the interests of justice to fix a non-parole period that would represent 70% or more of the head sentence imposed. There are cases where community protection can be enhanced through lengthy supervision and treatment in the community on parole, and I have concluded that yours is such a case.
65On the basis of my finding that, though inherently serious, this offending falls somewhat below mid-range and taking into account the matters personal to you, I have determined to impose sentences that are less than the specified standard sentences. That said your moral culpability for this offending was high and the sentences I will now impose must reflect that fact.
66Taking all relevant matters into account you will be sentenced as follows:
Sentence
67On Charge 1, sexual penetration of a step-child, you will be convicted and sentenced to a term of imprisonment of 7 years and 6 months.
68On Charge 2, sexual assault of a child under the age of 16, you will be convicted and sentenced to a term of imprisonment of 3 years.
69By reason of your conviction and sentence of imprisonment in respect of Charges 1 and 2, I will declare pursuant to s 6F of the Sentencing Act 1991 that you are to be sentenced as a serious sexual offender on Charge 3.
70On Charge 3 – sexual assault of a child under the age of 16, you will be convicted and sentenced to a term of imprisonment of 2 years and 6 months.
71I will direct that 1 year of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
72Pursuant to s 6E of the Sentencing Act 1991 a term of imprisonment imposed on a serious sexual offender for a sexual offence must unless otherwise directed be served cumulatively upon other sentences imposed. Taking into account the principle of totality I will therefore make the following order as to concurrency.
73I will direct that 18 months of the sentence imposed on Charge 3 be served concurrently with the sentence imposed on Charge 1.
74I will declare that it is my intention in sentencing you to render a total effective sentence of 9 years and 6 months.
75I will fix a non-parole period of 5 years and 6 months.
76I will declare pursuant to s 18 of the Sentencing Act 1991 that you have served 81 days by way of pre-sentence detention and I will cause that declaration to be noted in the records of the court.
77I will note that in consequence of these convictions you will be required to comply with the obligations imposed by the Sex Offenders Registration Act 2004, for the rest of your life.
78I will also direct that a copy of the psychological report of Dr Dion Gee of 15 May 2023 be attached to these sentencing remarks when forwarded to the Office of Corrections.
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