Director of Public Prosecutions v Colson

[2015] VCC 1376

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK COLSON (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	25 September 2015
CASE MAY BE CITED AS:	DPP v Colson
MEDIUM NEUTRAL CITATION:	[2015] VCC 1376

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes
For the Offender	Ms M. Tittensor

HER HONOUR: 

1Mark Colson[1], you have pleaded guilty before me to one charge of sexual penetration which is a representative count involving three sexual penetrations of the victim.

[1] A pseudonym

2The facts underlying your offending are as follows.  The victim in this matter was then 15 years and a couple of months.  She met you when she began undertaking judo at a dojo where you were training twice a week and obtained your black belt.  At first you would drive the victim and her girlfriend home, eventually you had discussions between you, she having become infatuated with you, you saying that you were interested in her.

3The charge as I have said encompasses three occasions.  The first occurred a few months after her 15th birthday when her mother and stepfather were away for the weekend.  You suggested that the two of you should have oral sex.  On that occasion, you inserted your tongue into her vagina, that being occasion 1 in the Charge, then put on a condom and penetrated her vagina with your penis, this being the first time the victim had had sexual intercourse.  The incident occurred at your house.  You told the victim that no one was to find out what had happened.

4On occasion 3, again at your house, you encouraged the victim to give you oral sex, penetrating her mouth with your penis and ejaculating.

5She reported the matter to police in December 2013.  This matter proceeded by way of contest both at committal and at trial although it was resolved and I accept the submission that the indictment you now face is significantly different to the indictment on the trial.

6I turn now to your personal circumstances.  You are 43 and grew up in the Wonthaggi area with your parents.  You have one younger brother and your parents are now retired from the retail businesses they ran in the area.  There was some disturbance in your early life due to your father's drinking and your parents separated for two years while he attended to his own issues.  Ultimately they reunited when you began secondary school.

7You completed Year 12, undertook a Diploma in Architectural Drafting, working in the meantime with a drafting business and for your parents.  You ultimately began your own business but worked at the same time as a carpenter until that business brought in sufficient income for you to be move on.  You have qualified as a project manager and are also qualified as an unlimited domestic builder.  Eventually, you took on a partner in the business that you now run but you are now the sole owner of that business which employs eight people and which has a mortgage of almost $1 million over it and your family home.

8You had a number of age-appropriate relationships in your early to mid-twenties and indeed your wife is the same age as you.  She is Japanese, you met her online and ultimately you married in 2005.  You have two children of that marriage aged eight and five.  Both children were born in Japan where your wife has family.  The second child had infant epilepsy which meant that the family stayed in Japan for 12 months until that resolved.

9On your return, you received a phone call from the complainant's boyfriend who demanded money, and thereafter began what I am satisfied was an extended period of stress that has had a fairly significant effect on both you and your wife.  You were charged in late 2013 but you had been aware that this could occur.  Your wife developed a mixed connective tissue disorder which affects her muscles and lungs, and which is reactive to stress and it would appear that she may have developed this in the context of the stress that you both underwent following your return from Japan and the phone call that I have referred to.

10This has continued.  When there are flare-ups, your wife is bedridden for six days.  As it is, her condition requires that she rest each afternoon and you therefore have to take a more active role with your children.  You were also, in late 2014, diagnosed with depression which appears to have been reactive to the court case that you faced.

11It is clear that a term of imprisonment would be entirely disastrous for both you and your family.  Your business would be unable to continue, your wife who speaks reasonable English but not entirely fluently would need to return to Japan to have the support of her family, and I am satisfied that a term of imprisonment would have the entirely catastrophic effect upon your life, your business, your marriage and your family in the way submitted to me by counsel.

12I have had you assessed for a community correction order.  Boulton's case has made it clear that offending of this kind which would previously only attract a term of imprisonment to be immediately served can now be dealt with by way of community corrections order in the appropriate cases.  You have been assessed by community corrections as suitable for placement on such an order and have been assessed as a low risk of reoffending.

13I am satisfied you are remorseful for your offending, particularly given the tone of the pretext conversation conducted with you by the complainant.  A significant delay has occurred, it being some 15 years since that offending.  Whilst delay in cases of this kinds has a lesser mitigatory weight, I am satisfied that the person that you were then and the person that you are now are entirely different, in that you now run your own business and are married with a family so that a term of imprisonment would be an entirely different proposition and a far more deleterious proposition for you now than it would have been had the matters been dealt with then.

14You have no prior criminal history and nothing since, and I am satisfied that this offending was an isolated incident in your life and that you do not need to be sentenced for the purposes of specific deterrence or protection of the community.  I do not find you to be a person anything other than someone who is likely to go on - once his court case is concluded - with your life and would find it most unlikely that you would ever appear before a court again.

15I received a victim impact statement from the complainant.  Unsurprisingly, she speaks of a major ongoing effect in her life, that is, at the time she missed out on normal relationships with boys her own age, her school friendships were affected and put a greater pressure on what was already a difficult relationship with her own family.  She stated that since she has gone on with her life, she has been unable to develop age-appropriate relationships.  She appears to have her own mental health issues, part of those being depression which was worsened as a result of the relationships that she had with you and the subsequent difficulties she had informing proper relationships later in her life.

16I accept that as is always the case, where there is an inappropriately disparate age between offender and victim, where the victim is particularly young, there are ongoing psychological effects from that that can continue well into the future and that has certainly happened in this case.

17However, because of the factors that I have referred to which are mitigatory, that is, your lack of prior and subsequent criminal history, your remorse for your offending, the fact that you have pleaded guilty which has saved stress to the complainant of giving evidence and being cross-examined in the trial, the delay in this matter, your own quite difficult personal situation and the finding that you are highly unlikely to offend ever again, it is my view that a community corrections order is an appropriate response to this offending.

18I spoke to the community corrections officer, Mr Black, who assessed you, and I accept that - he accepted, as do I, that in your case, there is no need for a condition of supervision or that you attend a sex offenders program.

19It seems to me that you are perfectly capable of attending to the mental health problems that you yourself have experienced since this matter re-emerged in your life.  My comment to you, Mr Colson, is that you may think this will all go away because the case has gone away but there will be aftermaths; depression does not recede of its own accord and it seems to me you have got significant domestic pressures as well which will take time to resolve.  I have been informed that your GP has referred you to a psychologist should that be required and I urge you to take up that option.  I know timewise it may be difficult but you may find there is a bit of an aftershock reaction to all this as well, emotionally, and probably some therapy could assist you with that.

20In any event, I have decided that a community correction order containing only a condition of unpaid community work is appropriate in your case.

21Could you stand up please.

22I can only place you on a community correction order with your consent and I need to outline to you the conditions that attach to it.  The core conditions are that whilst you are on this order, you may not commit another offence punishable by imprisonment either in Victoria or elsewhere.  You must report to the community corrections office within two days of receiving this order, that is, by Tuesday of next week.  Whilst on the order you must report to and receive visits from the community corrections office.  You must not leave Victoria without the permission of the community corrections office.  You must inform the community corrections office of any change of employment or address whilst you are on that order.

23I am going to order that the community corrections order last for a period of two years because of the seriousness of the offending, and that whilst on the order, you must complete 300 hours of unpaid community work.

24Are you prepared to enter this order?  Do you consent to it?

25OFFENDER:  Yes.  Yes, Your Honour.

26HER HONOUR:  I note that this course is not resiled from by the prosecution and helpfully I received the information that this is not a problem for the complainant whose main aim in reporting this matter was that the offending was acknowledged by you.  She mentioned in her victim impact statement that a number of people have turned against her because they did not believe her allegations.

27All right, we will draft the documentation.  Have a seat, thank you.

28Because I have placed Mr Colson on a community corrections order, I am not required to make a statement pursuant to s.6AAA as I declare it, Ms Parkes?

29MS PARKES:  Yes, Your Honour.

30HER HONOUR:  Thank you.  Yes, because of your offending, you will be placed on the Sex Offenders Register for 15 years and your counsel will explain to you your obligations under that.

31I should add, it is important to note, I think, that there has been a degree of emotional suffering to the complainant as a result of this offending.  I referred to her having depression which worsened but she does say, "Because of what happened to me, my depression became a lot worse to the point of being suicidal which drove me to have problems with substance abuse which I have now resolved myself.  I still see a doctor for my mental health issues."

32It is important the court does acknowledge the difficulties that have occurred for the complainant as a result of the offending against her.

33Thank you.  Yes, thank you, if you could sign that, thank you, Mr Colson.

34I return the victim impact statement - do you want me to keep that on the file or should I return it to you?

35MS PARKES:  Perhaps if we take it back, Your Honour.

36HER HONOUR:  Yes, thank you.

37Yes, thank you, we'll give you a copy of that order.  Mr Colson, I think that takes care of everything.  All right.  I've got a couple of matters from appeals this morning to deal with now, I think it's just one, isn't it?  Two, I thought we adjourned the other one off - so counsel are excused, thank you.  Mr Colson, you can come out of the dock now.

38OFFENDER:  Thank you, Your Honour.

39I thank counsel for their assistance in this matter.

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