Director of Public Prosecutions v Koolen

[2018] VCC 1899

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00694

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW FRANCES KOOLEN

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2018
DATE OF SENTENCE:	15 November 2018
CASE MAY BE CITED AS:	DPP v Koolen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1899

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Persistent sexual abuse of a child under 16; Offence constituted by non-penetrative sexual assaults; Gross breach of trust over three month period on 10 year old victim; Early plea of guilty; Strong family support of offender; Prospects for rehabilitation “cautiously optimistic”.

Legislation Cited:                 Sentencing Act 1991 (Vic); Sex Offender Registration Act 2004 (Vic)

Cases Cited:Moore v The Queen [2018] VSCA 2; Shawcross v The Queen [2018] VSCA 295

Sentence:  Total Effective Sentence: Five years imprisonment.
  Non-parole period of two years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron	Office of Public Prosecutions
For the Accused	Ms D. Mitchell	McFarlane Criminal Lawyers

1Matthew Frances Koolen, you have pleaded guilty to one charge of persistent sexual abuse of a child under the age of 16.  The charge consists of four separate occasions comprising 5 instances of sexual abuse on one complainant.  The offending spanned the period 17 July 2017 to 5 October 2017.  The victim, who I will refer to for the purposes of the sentencing remarks as AB, was born on 22 August 2006 and was aged 10 and 11 during the time of the offending.

2You were born on 1 March 1977.  You were 40 years of age at the time of the offending.  You are now 41.

3Between 2011 and October 2017 you were in a de facto relationship with the complainant’s mother.  You each had children from previous relationships, however, AB was the only child that resided with both of you permanently.  She was your de facto partner’s daughter, but you had been involved in her care for approximately six years.

4In June 2017 the family unit moved to a new home.  At that time you began dropping AB off at her school bus stop on your way to work and you would pick her up of an afternoon on the way home.  Due to your partner’s work commitments you spent more time alone with her.

5The summary of prosecution opening describes the circumstances of your offending as follows:

"Charge 1(b) — touched victim’s vagina over her clothing whilst giving her a 'piggyback’ ride

"The first incident occurred when AB, Mr Koolen, the complainant's mother were at home, walking together on the property to tend to their horses.  AB asked Mr Koolen for a piggyback because she was tired from walking.  As he did this he reached back and touched AB on her vagina over her clothing.  The complainant's mother was walking ahead with her back to them, pushing a wheelbarrow, and was unaware of what was happening.

"This occurred a number of times.

"Charge 1(a) — touched victim’s vagina over her clothing in lounge room

"The second incident occurred on an afternoon a couple of days after the first incident, when the complainant's mother was not home.  AB was on the couch in the lounge room watching television.  Mr Koolen walked past her and as he did so, he bent down and touched her vagina over her clothing.

"AB pushed Mr Koolen away.  She then let the dogs in, put a blanket over herself and had one of the dogs sit on her lap on the couch in an effort to stop Mr Koolen from touching her again.

"Charge 1(c) — exposed penis and masturbated in victim’s bedroom

"On another occasion, AB was on the couch in the lounge room watching television when Mr Koolen walked in naked from the waist down and stood in front of the television, exposing his penis.  AB tried to look away, then got up and went to her bedroom.

"Mr Koolen entered the bedroom wearing tracksuit pants.  He then pulled his penis out and started masturbating.  AB felt like she could not get away from Mr Koolen, even in her own room.  AB tried to stop this by going to ride her horse and asking Mr Koolen to assist her, in an effort to distract him and stop what he was doing

"Charges 1(d) & 1(e) — touched victim’s vagina over clothing in his bedroom & masturbated in his bedroom

"On 2 October 2017, on another afternoon when only AB and Mr Koolen were home, she went to his bedroom to ask for help saddling up the horse.  She yelled out to Mr Koolen then knocked on his bedroom door before opening it. Mr Koolen covered himself with the doona cover then pulled it off, exposing his erect penis.  He then masturbated in front of AB, who entered the room and sat on the edge of the bed on her mother’s side, facing away from Mr Koolen.

"Mr Koolen then reached over and touched AB's vagina, placing his fingers under the elastic of her leggings before she pushed him away.

"Mr Koolen then asked AB to touch him, however she refused and left the room."

6On the evening of 5 October 2017, AB’s mother returned home unexpectedly.  She walked into the home to find you naked from the waist down attempting to light the fire.  As you were doing this she saw her daughter leaning on your back.  Your partner became concerned and angry and soon afterwards questioned her daughter as to what had been going on.

7AB told her that she had been watching you masturbate and that you had touched her over her clothing and that it had been happening for a couple of months.  As AB explained what had been happening, you phoned her mother and spoke with her.  You initially denied that anything had occurred, but then admitted that you had touched AB over her clothing and masturbated in front of her.

8The matter was reported to police the following day and that afternoon the complainant’s mother phoned you at the request of the police.  That call was recorded.  In it, you made admissions to being naked and touching AB and said that you did it “just to excite her, I suppose”.  You also acknowledged that it was wrong and that you had “fucked up”.  Later that night you were arrested and interviewed.

9During the course of your record of interview you made substantial admissions to this offending.  You said the offending had commenced by giving AB piggyback rides where you would reach behind her and touch her on the vagina.  You told the police that there were two incidents in the bedroom where you were lying in bed masturbating when AB walked in and jumped onto the bed.  You said that you should have stopped and covered yourself but you did not.  You also admitted touching her through her clothes on the vagina and giving her “a bit of a rub”.  You said that you had no idea why things had gone so far and that you knew that you were doing the wrong thing.

Impact on victim

10AB’s mother provided a victim impact statement.  She describes her daughter as having suffered greatly as a result of what you did.  She says she feels incredibly hurt and “messed up”.

11She also describes her devastation when she discovered what you had been doing to her daughter.  She was subsequently diagnosed with depression and anxiety.  Your offending has affected her work, her family, and her health and undermined her trust in others.

12The impact of your offending is an important consideration that I must take into account in formulating the sentence that has to be imposed in your case.

Personal circumstances

13Turning to your personal circumstances, you were born and raised in Korumburra, and were the second of three children.  Your parents separated when you were five years old and you lived with your mother thereafter but maintained regular contact with your father.

14Your family moved around quite a bit, with you attending local primary and secondary schools in the Heyfield, Sale and the Traralgon areas.  You describe yourself as an average student and left secondary school halfway through year 11.

15You commenced your working life as a welder and worked for the same company for about two years, before moving to Perth with your first wife.  You began an apprenticeship there but could not complete it because the company that employed you went out of business.

16Upon returning to Melbourne you went back to welding and also worked at an emu egg incubator business for several years.  You then worked for a business which manufactured horse floats.  You later purchased that business which you operated for approximately six years until it failed.  You then took up an apprenticeship as an electrician at ‘Koolair’.  You are now working there as the head mechanic and you are engaged in manufacturing and repairing air-conditioners and you’ve been with this company for about 7 and a half years.  It is evident that throughout your working life you have demonstrated a strong commitment to your work.

17You met your first wife when you were 18 and married when you were 22.  There are three children of that marriage aged 19, 15 and 11.  Unfortunately the marriage broke down in 2010 but you were able to maintain a strong relationship with your children.  You met the mother of the complainant when you were about 33 years of age and the early years of that relationship were apparently positive.

18In more recent years, however, the relationship deteriorated and in that setting you increasingly abused alcohol, habitually viewed pornography and lost purpose.  These circumstances provide the setting within which you committed this offence.  I note that you deny ever viewing any paraphilic or underage sexual material.

Personal References

19Six personal references were relied upon on your plea.  Most of the authors of those references were present in court to support you or had been at the previous plea hearing which could not proceed through no fault of yours.

20Your former wife, Kelly, the mother of your three children, speaks highly of your qualities as a devoted and loving father.  As to this matter she states:  

“I have spoken to Matthew a lot since he was charged.  He has been honest, very open, and extremely remorseful.  I hear a man that is trying to understand why he made the mistakes he did.  How did his life hit rock bottom without him knowing?  So many occasions I hear him crying and how sorry he is.  How he wishes he could take it all back.  How he wants to get the help that he can to understand why he made the choices he did; how to be a better man.”

21All of the other references, particularly those from your brothers and sisters, laud your qualities as a father and a brother.

22Significantly, your brother and employer, Daryl Koolen, gave powerful oral evidence.  Although he is your brother, you have had more of a close business relationship with him over the last eight years or so.  You have become an extremely important part of his business and that role is to increase when you become properly qualified as an electrician.  He also said that you were deeply sorry for what you have done.  Despite the nature of your offending, your brother, indeed all of your family, continue to firmly support you.  Daryl Koolen confirmed that you can resume your employment once you have completed any term of imprisonment that you must serve.

Assessment and Treatment

23On 27 November 2017 and 20 July 2018 you were assessed by Dr Matthew Barth, psychologist.  His findings suggest that you are an immature and a rather dependent individual who had difficulties managing the complexities of adult relationships.  He describes you as perceiving yourself as being socially awkward and lacking confidence.  So far as your sexual adjustment is concerned Dr Barth states as follows at [37]:

"The predominant issues of note which have impacted Mr Koolen's sexual adjustment relate to the problematic interpersonal dynamics discussed above.  Specifically, Mr Koolen's significant immaturity, limited social skills and his noteworthy interpersonal dependency which have contributed to significant difficulties in sustaining healthy adult intimacy.  In regards to the current offending, Mr Koolen was drawn to an underage female during a period where he felt increasingly powerless and alienated in his relationship with the complainant's mother.  He was able to attain the attention from an underage partner, where he could avoid having to navigate the responsibilities and commitments of a typical adult relationship.  In the process, he became increasingly unable (or unwilling) to enforce appropriate boundaries with the complainant and had considerable difficulty delineating between healthy familial affection with the complainant on the one hand and erotic feelings for her on the other.  At the time of our interview, Mr Koolen still had limited insight into such matters."

24At [39], Dr Barth states:

"Mr Koolen's offending indicates a poor understanding of the normative mental and sexual development of underage females, often referred to as ‘offence-supporting cognitions’.  Correcting these cognitions has been an integral feature of the treatment with Mr Burrows and at the time of his most recent interview, Mr Koolen was able to display signs of challenging these cognitions and reflecting on the negative impacts of sexual contact with underage females.  However, his understanding remains underdeveloped and should be the focus of continued sex-offender treatment."

25One factor that appears to have contributed to the deterioration in your personal circumstances is very heavy alcohol consumption.  This is something that has developed over recent years and was sufficiently severe to warrant a diagnosis of an “alcohol use disorder” of moderate severity.

26Since 25 January 2018 you have participated in a Sex Offender Treatment Program with a forensic counsellor, Mr Geoffrey Burrows, under the supervision of Dr Barth.  You have attended 14 sessions for that purpose at your own expense.

27It is clear that this treatment has been challenging for you.  You found it extremely difficult to discuss the details of your offending.  You lacked the social skills to build healthy intimate relationships, abused alcohol and had limited insight into the impact of your offending.  As at July 2018 you had made some steady progress, albeit relatively slowly, and your insight was still developing.

28In his second report of 5 November 2018, Mr Burrows, at [2], states as follows:

"Since my previous report, Mr Koolen has made continued progress in relation to enhancing his insight, improving his social and coping skills and consolidating his relapse-prevention planning.  Mr Koolen has discussed his offending more openly and was assisted to recognise that his offending was motivated predominantly by his intimacy related needs in conjunction with a distorted view of the complainant's emotional and psychological maturity at the time of his offending.  Notwithstanding this encouraging development, Mr Koolen's relatively slow progress dictates that further treatment is required to continue to enhance his insight into the underlying motivations of his offending behaviour."

29You have also engaged in psychotherapy on six occasions with a mental health social worker, Ms Liz Harbridge.  In that treatment you have been able to articulate how you rationalised your behaviour at the time of the offending and minimised its seriousness.  The main goal of that therapy has been to assist you to develop what is described as “reflective capacity” and recognition of the impact of your offending on the child.  Ms Harbridge describes you as being cooperative and well engaged with that process.  It is ongoing.

30Dr Barth administered a number of assessment tools directed to ascertaining your future risk of sexual recidivism.  Given your relatively slow progress in treatment he assesses your overall risk of sexual recidivism as falling in the “moderate-risk” category.  It would be expected that that level of risk would reduce as your treatment continues.

31In his concluding remarks Dr Barth said at [48] of his report:

"During the current assessment, Mr Koolen accepted responsibility for his behaviour and expressed his desire to avoid re-offending.  Furthermore, he demonstrated some encouraging signs of evaluating his behaviour and the destructive impact his actions have had on the complainant.  From a therapeutic perspective, Mr Koolen would benefit from a disposition which allowed for a relatively lengthy period of supervision and support in the community.  This would ensure that he receives the treatment and other assistance he requires in a context of appropriate oversight and monitoring by relevant authorities."

Submissions as to sentence

32Ms Mitchell, who appeared on your behalf, relied on the following factors in mitigation of your sentence:

33You made full and frank admissions to the complainant’s mother in the pretext call and to the police in your record of interview;

34You entered a plea of guilty at what should be regarded as the earliest opportunity to do so;

35You have therefore taken responsibility for your offending from the outset;

36Your plea has enormous value insofar as it spared the complainant and those close to her the trauma of having to give evidence at either committal or at trial;

37Your plea is supported by what I regard as genuine remorse which is inherent in your plea and which is supported by the comments you’ve made to Dr Barth and other professionals that have treated you.  It is plainly evident to those that have provided references in support of you.  It was confirmed by your brother in his oral evidence and in the manner in which you have applied yourself to treatment.  All of those matters are indicative of that remorse;

38Your lack of prior convictions and otherwise good character;

39Your strong work history;

40You have reasonable prospects for rehabilitation particularly with continued sex offender treatment, alcohol abuse treatment and the support of your family.

41In putting those matters, Ms Mitchell acknowledged the seriousness of your offending and the reality that in cases of sexual offending against children there must be greater emphasis on general deterrence and protection of the community.  She suggested that it was very difficult to discern current sentencing practice for this particular offence given that it now encompasses a very wide range of sexual abuse.  That said, given that the offending did not involve any penetrative sexual assaults, it was submitted that it could be characterised as tending toward the lower end of the range of conduct that would constitute this very serious offence.

42It was therefore contended that a very short period of immediate custodial imprisonment should be imposed before you became eligible to be supervised for a lengthy period on parole.

Crown submissions on sentence

43Mr Cameron who appeared on behalf of the Director of Public Prosecutions accepted that the offending could properly be characterised as falling within the “low to middle range" of the spectrum of conduct captured by this provision.  He said there were, however, a number of features which aggravated your offending.  In particular, the fact that it occurred over a period of approximately three months; that it involved a vulnerable 10 and 11 year old victim; and, that at the time you offended you acted in the role of a parent, accordingly what you did constitutes a gross breach of trust.

44Mr Cameron accepted that your plea had been entered in what for all intents and purposes was the earliest opportunity.  He also accepted that you had demonstrated remorse for your offending.  Given Dr Barth’s assessment of you falling in the moderate risk category for sexual recidivism and the fact that your progress in treatment had been relatively slow, he submitted your prospects of rehabilitation should be seen as “cautiously optimistic”.

45He further submitted that general deterrence and denunciation were very significant purposes for which this sentence should be imposed.  He also accepted that it is difficult to discern a sentencing practice for this offence in light of its history.  He referred to Moore v The Queen [2018] VSCA 2 as providing some limited guidance. Finally, Mr Cameron reminded me that a sentence of immediate imprisonment with a non-parole period must be imposed in accordance with section 5 (2G) of the Sentencing Act 1991 (Vic).

Findings

46I accept that all of the matters relied upon by your counsel in mitigation should be taken into account in your favour.  I was particularly impressed by your brother’s evidence as to your remorse and the support of your family, by the fact that you made admissions from the outset and took responsibility for your offending, that you have made substantial efforts to try and understand why you offended in this way, and have undertaken treatment to ensure that you never offend again in this way.  In the opinion of the experts, you still have a long way to go but I accept the prosecutor’s characterisation of your prospects for rehabilitation as being "cautiously optimistic".

47On the other hand, I have to have regard to the impact this offending had on AB and her mother.  As a community we now have a much more informed understanding of the profound impact that sexual abuse can have.  This case is no exception, as the mother’s victim impact statement attests.

48In formulating sentence I must have regard to the maximum penalty of 25 years imprisonment and, whilst not in any sense a controlling factor, I should also have regard to current sentencing practice.  I accept Ms Mitchell’s observation, however, that there is a very wide range of offending that may comprise this offence and therefore discerning current sentencing practice is problematic.

49In that respect also, I note that the Victorian Court of Appeal handed down the decision of Shawcross v The Queen [2018] VSCA 295, yesterday. That case dealt with an example of this offence which was characterised as being at the higher end of the middle range. By contrast, I consider that this case lacks many of the aggravating features present in Shawcross and in the three comparative cases referred to in their Honour’s judgment.  In particular, the fact that there is non-penetrative touching over the clothing and indecent acts which make out the charge, that there is a shorter duration of offending and that the quality of your subjective circumstances are of a high order, in my view clearly distinguish this case from those more serious instances.

50That said, whilst this offending does not constitute the most serious example of this offence, given that it did not escalate into penetrative sexual assaults, nevertheless I still have to take into account, that in carrying out this offending over a three month period you committed a gross breach of trust on a vulnerable young girl in your care.

51The seriousness of that conduct demands no other sentence other than a sentence of imprisonment.  Nothing less could adequately denounce your conduct; nothing less could adequately deter others who might be minded to engage in similar conduct.

52In all of the circumstances that I have outlined in respect of the charge of persistent sexual abuse, you will be convicted and sentenced to a term of imprisonment of five years.  I will, in the circumstances, however fix a non-parole period of two years and six months. 

53Pursuant to 6AAA of the Sentencing Act I will declare that but for your plea of guilty I would have sentenced you to a total effective sentence of six years, six months with a non-parole period of four years

54Pursuant to section 18 of the Sentencing Act I will declare that you have already served 8 days of pre-sentence detection and I will cause that declaration to be noted in the records of the Court.

55I note that by reason of the fact that the offence to which you have pleaded guilty is a Class 1 offence under the Sex Offenders Registration Act 2004 (Vic). You will be required to report for life under the provisions of that Act.

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