R v Coleman

[2019] NSWDC 285

District Court

New South Wales

Medium Neutral Citation:	R v Coleman [2019] NSWDC 285
Hearing dates:	21 January 2019
Date of orders:	21 January 2019
Decision date:	21 January 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [54]
Catchwords:	CRIMINAL LAW – sentencing – sexual intercourse without consent – historical matter – verdict of judge alone trial
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Conte v R [2018] NSWCCA 209 Ibbs v The Queen (1987) 163 CLR 447 R v Gebrail (unrep, 18/11/94, NSWCCA) R v Hartikainen (unrep, 8/6/93, NSWCCA) R v May [1999] NSWCCA 40 R v McNaughton (2006) 66 NSWLR 566 R v PGM (2008) 187 A Crim R 152 R v Pham [2005] NSWCCA 94 R v Russell (unrep, 21/6/96, NSWCCA)
Category:	Sentence
Parties:	Regina (Crown) Ronald Coleman (Offender)
Representation:	Counsel: Mr K Averre (Crown) Mr D Pullinger (Offender)   Solicitors: ODPP (Crown) Criminal Law Centre (Offender)
File Number(s):	2016/374893
Publication restriction:	Non-Publication Order with regards to the name of the victim

Introduction

1. The Offender appears before the Court today for sentencing after being found guilty of the offence contained on the Indictment.

2. In sentencing the Court of course has regard to the guideposts of maximum penalties and any applicable stated non-parole period if one such exists. The maximum penalty is Parliament’s assessment of the offending.

3. The offence for which the Offender is to be sentenced is charge H63319476 sequence 1, being that between 1 February 1996 and 31 March 1996, at Bondi Junction in the State of New South Wales, the Offender did have sexual intercourse with the complainant (‘AC’), without the consent of AC and knowing that he was not consenting, in breach of s61I of the Crimes Act.

4. The matter proceeded before me without a jury for reasons previously given, resulting in a judgment being delivered on Monday 4 June 2018 resulting in a finding of guilt against the Offender in respect of the subject offence. I note the maximum period of imprisonment applicable is 14 years and there is no standard non-parole period which applies.

5. The Offender was born on 15 September 1964 and is now 54 years of age. The offending was committed between February and March 1996 when he was 31 years of age.

6. He was arrested and charged on 14 December 2016. On 11 July 2017 he was committed for trial to the District Court. The Offender was found guilty on 4 June 2018 as previously mentioned. He has been in custody in relation to this offence since 4 June 2018 and the sentence needs to be backdated to account for that period but also a further period in which he was incarcerated initially upon his arrest and on two other occasions following bail breaches.

7. The evidence on sentence comprised:

1. the Crown Bundle (Exhibit A) which included a Victim Impact Statement, a Sentencing Assessment Ropert together with custodial history, New South Wales criminal antecedents, West Australian criminal antecedents and a transcript of the Court’s judgment of 4 June 2018;

2. a report by Karen Burgoyne, psychologist, dated 20 November 2018 (Exhibit 1); and

3. statistics (MFI 1).

Factual Findings

8. Given that the trial proceeded without a jury it is necessary in any event for the Court to make factual findings upon which the objective seriousness of the offending can be determined. It is agreed between the parties that the factual findings made by the Court in the course of delivering judgment sufficiently make out the facts. I note in referring to these facts that the Offender maintains his innocence in respect of the offending. However, the following factual findings were made by me on 4 June 2018 and neither counsel has today sought to supplement the factual matters which I will refer to.

9. On 4 June 2018 I made the following findings beyond reasonable doubt: That as at March 1996 the following occurred:

1. the Offender met up with the complainant and his mother at the Lidcombe/Auburn Tennis Club;

2. the Offender invited the complainant to go into town for drinks;

3. the Offender and the complainant caught a train from Lidcombe into the city;

4. after visiting a number of other clubs or pubs the Offender and the complainant went to the Exchange Hotel where the complainant was drinking Sub Zero drinks;

5. at the Exchange Hotel the complainant’s head or face came into contact with a table causing bleeding;

6. the complainant and the Offender then left the Exchange Hotel and travelled by taxi to a residence in Bondi Junction;

7. as at that date, being the date of the offence, the Offender was living in a granny flat at the rear of a residence in Bondi Junction;

8. the Offender escorted the complainant into the granny flat;

9. the Offender removed the complainant’s clothing from the bottom part of his body;

10. the complainant attempted to resist the Offender by saying that he should not be doing what he was doing;

11. upon removing the complainant’s clothing the Offender then removed all of his own clothing before attempting to penetrate the complainant’s anus with his penis, that is, with the Offender’s penis;

12. at that time the complainant was face down on the floor and unable to move;

13. the complainant told the Offender to stop and he in no way consented to what the Offender then did;

14. the Offender then inserted his penis with or without a condom into the anus of the complainant and had sexual intercourse with him; and

15. I note that I accepted the evidence of the complainant as to what occurred thereafter, namely he woke up the next day, had a shower and left the premises.

10. Having made those factual findings beyond reasonable doubt the Court was satisfied on that basis that the elements of the offence had been made out. They are the essential relevant facts upon which the sentence is to proceed.

Objective Seriousness

11. As it was submitted today on behalf of the Crown there is no doubt that offending of this type is serious in nature. It was conceded by counsel for the Offender that the offending fell at about or approaching the mid-range for offending of this type.

12. A predominant factor relevant to the sentence is the objective seriousness of the offence. It is not, however, necessary to articulate a determination by placing the offence along a hypothetical range. It remains an essential task however to undertake an evaluative assessment of the objective seriousness of the offence.

13. The starting point is the maximum penalty of 14 years to which I have already referred. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality.

14. The courts have always regarded sexual intercourse without consent as a serious offence. I note the decision of the Court of Criminal Appeal in the matter of R v Russell (unrep, 21/6/96, NSWCCA) and the comments of Gleeson CJ in R v Hartikainen (unrep, 8/6/93, NSWCCA) in which his Honour stated that non-consensual intercourse is an extreme form of violence and one which the community expects the courts to take very seriously. As was noted by the Court of Criminal Appeal in the matter of R v May [1999] NSWCCA 40 at [7] this remains so in cases where there is no additional violence perpetrated against the victim.

15. As was pointed out by the High Court in the matter of Ibbs v The Queen (1987) 163 CLR 447, an important step in determining the appropriate sentence is to assess where the particular sexual assault offence lies on the spectrum or scale of seriousness. In the matter of R v Gebrail (unrep, 18/11/94, NSWCCA) Mahoney J emphasised the importance of making clear findings about the objective seriousness of the crime in sexual assault cases.

16. I further note again the comments of the High Court in the matter of Ibbs v The Queen at 452 where it was stated that:

“The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined.”

17. I note the comments of Fullerton J in the matter of R v PGM (2008) 187 A Crim R 152 at [26] where her Honour stated:

“While there is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law, it is generally accepted that some forms of sexual activity may be regarded as more serious than others. This is of course necessarily modified by the context in which the offence occurred, and other circumstances of the particular offending.”

18. In considering the objective seriousness of the offending I have had regard to the victim impact statement which forms part of Exhibit A and which was read to the Court by the complainant, AC, who is the nephew of the Offender. Without reciting what appears in the victim impact statement, it is plain that the effect of the offending has had a lifelong impact upon the victim and has impacted upon almost every aspect of his life.

19. In my opinion the offending in this case was serious. The conduct of the Offender was in a sense brutal and I find that the objective seriousness falls within the mid-range.

Subjective Case

20. The subjective case is something which has occupied quite a lot of the Court’s attention. The evidence which informs that matter comprises the Sentencing Assessment Report by Jodie McMahon, together with a report by a psychologist previously referred to.

21. Before turning to that however, I note the Offender gave evidence on 29 May 2018 where he provided some information about his childhood, in particular becoming institutionalised in boys homes, as they were called, from about the age of 13. I note that he migrated to Australia from Scotland when he was about eight years of age.

Deprived Upbringing

22. There was no doubt that the Offender had a very unsatisfactory upbringing. I note, for example, at T150.23 the following appears:

“I was in a boy’s home called Daruk. I don’t know if you remember, it’s been closed down for many years now. It got closed down for the purpose of child abuse. I went there twice. Once I was in Woollahra and the second time Bundah. They lost my file. I gave up many years ago after that and shocking as it is I gave up a long time ago. I spoke to judges like yourself, magistrates, Local Court, parole, everyone and no-one believed me. I was due to be released from Long Bay prison, that was inside 2014 and Sasha Kovacic was my”‑‑

23. The effect of the evidence, as it appears at T150, is that whilst a resident in those boys homes the Offender was repeatedly raped. When he was asked at T153 about what happened in the boys home, his response was “I’ve been copping it for most of my life.”

24. The effect of that conduct by others upon the Offender no doubt contributed to his history of offending from an early age, together with his consumption of alcohol, again from an early age, and also his use of marijuana.

25. There is no doubt that the Offender suffered a deprived upbringing within the meaning of Bugmy v The Queen (2013) 249 CLR 571, and as the Court of Appeal reminded sentencing judges last year, the categories of persons to be considered in that context of a deprived upbringing is not limited to a particular class of person such as Indigenous or others.

26. The Sentencing Assessment Report by Ms McMahon followed an interview with the Offender. With regards to the Offender’s living situation Ms McMahon noted that prior to entering custody he was residing in a caravan park on the Central Coast of New South Wales. Ms McMahon reported that the Offender has limited social and family support within the community, and that much of his support is through local charities and services. The Offender received a disability support pension and I note from other material that has been tendered in relation to the sentence that the Offender, whilst in the community, engaged in voluntary work.

27. As noted he has an entrenched history of offending and incarceration since 1977. He described to Ms McMahon a history of alcohol abuse, generally consuming one bottle of port per week. I think the history provided to the psychiatrist speaks of a high level of consumption, but in any event there is no doubt that the Offender became alcohol dependent from an early age.

Risk of Re-Offending

28. There is reference in both the Sentencing Assessment Report and the psychologist’s report to a history of sexual offending prior to the subject offending. The only reference I can find to any such matter related to an event that occurred on 22 February 1998, which in fact was after the subject offending, where he was convicted of the offence of peep or pry. Having given careful consideration to the Offender’s criminal record there appears to be no sound basis for any finding that he had a history of sexual violence or sexual offending. The majority of his offending seems to relate to break and enter and the like and the odd reference to possessing a prohibited drug.

29. So it is not entirely clear to the Court how the author of the Sentencing Assessment Report or the psychologist formed the view that the Offender had a history of sexual offending and accordingly I do not intend to make such a finding.

30. I was also troubled by the fact that the author of the Sentencing Assessment Report and indeed the psychologist, in considering the risk of re-offending, assessed the Offender, pursuant to the Level of Service Inventory-Revised (LSI-R) as being at medium risk of reoffending. Whilst counsel for the Crown has quite properly submitted that such an instrument is a blunt tool, it appears to me that the finding made by the Sentencing Assessment Report author and the psychologist, overstates the risk of recidivism on the part of the Offender, this being the only offence of a sexual nature for which he has been charged or convicted.

31. I note in the case note report attached to the sentencing assessment report that the author refers to a further test described as “the Static‑99R” as being a reliable and valid actuarial risk assessment, scaled for sexual Offenders and which is relied upon for the current presentence risk assessment. The author in the case notes stated:

“From file review, Mr Coleman’s risk of sexual reoffending is assessed with a Static‑99R and scored eight. Therefore Mr Coleman is considered well above average risk relative to other male sex Offenders.”

32. The paragraph which follows in the case note report:

“Some limited insight is given as to the types of considerations that are applied in determining the risk pursuant to Static‑99R.”

33. The author correctly points out that the test is only an actuarial measure and does not account for the dynamic risk factors that contributed to the offence. It measures only static risk factors that cannot change over time, compared to dynamic risk factors that can. Given that this offending occurred back in 1996 and that the Offender has not been charged or convicted of any like offences since that time, I reject the opinion of both the author of the Sentencing Assessment Report and psychologist that the risk of re-offending is average or above average. Instead I find that the risk of reoffending is slight.

Mental Health

34. The Offender, again as a continuation of his unfortunate childhood, is currently involved in the Royal Commission Concerning Institutional Response to Child Sexual Abuse, due to his own experience of being a victim of sexual assaults whilst in juvenile detention. The Offender was assessed by Ms McMahon as I have already noted and she noted a number of factors, including a limited social support network, extensive trauma history, past history of drug and alcohol abuse, general self-regulation, negative emotionality, denial of the offence and intimacy skill deficits as being relevant to the assessment of the Offender. Helpfully the author of the report did make a number of recommendations in relation to treatment which the Offender may avail himself of whilst in prison.

35. I have also read the report by the psychologist. Although the Offender did not give evidence in the sentence hearing, as I have noted, he gave evidence in the course of the trial and his sworn evidence on that occasion sufficiently lays the foundation for the assumptions made by the author of the psychology report referred to.

36. The result or the psychologist’s assessment of the Offender is that she diagnosed the following disorders:

1. substance use disorder (alcohol);

2. post-traumatic stress disorder; and

3. major depression.

37. Due to the time which elapsed between the offending in 1996 and the assessment by the psychologist, she, understandably was unable to express an opinion about the nexus between his psychiatric conditions and the offending in question. It was submitted by counsel on behalf of the Offender that as the post-traumatic stress disorder related to a childhood offence, he may well have been suffering from those events at the time of the offending. That requires a level of speculation that the Court is not prepared to engage in, however I do accept the submission that the current psychiatric diagnoses made by the psychologist will cause greater hardship to the Offender in custody than the average prisoner.

38. I note also that Ms Burgoyne has also referred to a number of custody based sentence outcomes which she recommends commencing page 10 of her report.

Previous Convictions

39. The Offender has a lengthy criminal history which disentitles him to a finding of good character. It was submitted on his behalf that prior to being charged in relation to the subject offending, he had reached the point in his life where he had reached the cross-roads and had chosen to live a ‘crime free’ life. It appears that he had been released from prison about 18 months prior to being charged with the subject offences. Whilst 18 months may not seem like a particularly lengthy period of time, given the Offender’s criminal history it is none the less significant.

40. In the matter of R v McNaughton (2006) 66 NSWLR 566, the Court of Criminal Appeal sat as a bench of five to determine how a sentencing Judge should have regard to previous convictions. In determining this matter I have taken into account the principles set forth by the Court of Criminal Appeal in that matter.

Remorse

41. Remorse is also a matter which the Court must consider in determining an appropriate sentence. It is always difficult in cases where the Offender pleads not guilty but is found guilty, to find remorse where innocence is maintained. Remorse of course is but one feature of post-offence conduct which may inform the penalty to be imposed.

42. Here regrettably there is no evidence of remorse, based on the plea of not guilty and what is referred to as his ambivalence to the offending, reported by Ms Burgoyne. Accordingly I decline to find that the Offender is remorseful.

Risk of Deportation

43. In the Sentencing Assessment Report there is reference to the fact that the Offender’s permanent visa may be cancelled as a result of the offence. Deportation is “irrelevant as a sentencing consideration, it being a matter exclusively for the executive government”. I refer to the decision of the Court of Criminal Appeal in the matter of R v Pham [2005] NSWCCA 94 at [13]. In any event counsel for the Offender did not make a submission, in fact declined to make a submission to the effect that his client would suffer hardship by reason of the risk of deportation in the event of incarceration.

Approach to Sentencing

General Principles

44. The general principles that are to be applied for sentencing of course are set out in s3A of the Crime (Sentencing Procedure) Act. They are as follows:

1. punishment; plainly that looms large in a case of sexual violence, such as this.

2. deterrence; it was suggested that perhaps the Offender is not the best vehicle for general deterrence, given his psychiatric condition, however given that there is the absence of evidence of any nexus between his psychiatric condition and the offending, I do not accept that he is not an appropriate vehicle for general deterrence and find that both specific and general deterrence are relevant to the sentence in this case;

3. protection, that is to protect the community from the Offender; given that this was an isolated event and there is no other history of violence, sexual violence of this type, I do not regard protection of the community as being particularly significant in this case;

4. rehabilitation is the next consideration, that is to promote the rehabilitation of the Offender and as I have noted the various psychologist’s reports have made recommendations in relation to rehabilitation which I would recommend the Offender take up;

5. accountability, that is to make the Offender accountable for his actions, as I have mentioned there has been no demonstration of remorse in this case and that has been taken into account in arriving at the appropriate sentence in order to ensure accountability;

6. denunciation, that is to denounce the conduct of the Offender, given the absence of remorse and the lack of understanding of his offending and its consequences, the need for denunciation is being taken into account in this sentence; and

7. recognition of the harm done to the victim and to the community. I have already referred in general terms to the victim impact statement, there is no doubt that offending of this type affects people in a very severe way, which is victims in a very severe way and the Court in sentencing an Offender for an offence of this type, must recognise that significant harm done to the victim.

Instinctive Synthesis

45. As was submitted by counsel for the Crown, sentencing is ultimately an exercise in instinctive synthesis as the Court of Criminal Appeal reminded the sentencing Judges only last year in the matter of Conte v R [2018] NSWCCA 209. It involves the consideration of the purposes for sentencing which I have just referred to in the context of weighing the objective gravity of the offending with the subjective case.

46. In the present case there are considerations which work for and against the Offender in terms of the sentence outcome. Plainly his upbringing is a matter which the consideration which works in his favour, similarly his criminal record is a matter which does not necessarily work in his favour, similarly his lack of remorse in relation to the offending found to have been committed, is not something which favourably affects the sentence outcome.

Proportionality

47. I am also mindful of the principle of proportionality, that is that the sentence ought to neither exceed nor be less than the gravity of the crime, having regards to the objective circumstances and the subjective case.

Imprisonment

48. In terms of imprisonment, I must be satisfied, having considered all possible alternatives that no sentence, including non-custodial sentences other than imprisonment is appropriate.

49. In this case the Crown contends that the threshold under s5 of the Act has been met and that imprisonment is warranted. Quite fairly on behalf of the Offender counsel has conceded that same matter. Accordingly I find that having, after considering every alternative, imprisonment by way of fulltime custody is appropriate.

Special Circumstances

50. I next consider the question of special circumstances as they bear upon the ratio of parole to non-parole. In my mind the Offender would benefit from a short additional period of supervision in the community to ensure satisfactory reintegration. In addition I am also mindful of the fact that given the Offender’s criminal history, his risk of institutionalisation and for that reason I intend to reduce the ratio of parole to non-parole, which I will announce in a moment, but in any event I find that special circumstances exist.

Consistency

51. Now consistency of course is another matter which the Court should strive to achieve in sentencing Offenders for like offences. Counsel for the Offender has provided some statistics (MFI 1), with the variables adopted as they arise in this case, gave rise to a population of just four cases, 100% of which resulted in fulltime imprisonment. The range of imprisonment was in general terms from about three to six years with non-parole period of about two to three years.

52. Given the small population that is represented by the statistics, the instrument is even blunter than it is in other cases where more generous populations exist and provide greater insight into what would be consistent for sentencing outcome. I do not place particular weight on the statistics in this case, I am more guided by the maximum penalty which applies, that is 14 years and the objective seriousness of the offending, together with the subjective circumstances peculiar to the Offender.

Sentence

53. Having regard to the time spent in prison prior to today, the sentence will commence on 27 May 2018.

54. Mr Coleman you are convicted of the offence on the indictment, namely sexual intercourse without consent in breach of s61I of the Crimes Act. I impose a non-parole period of four years commencing 27 May 2018 and expiring 26 May 2022. I impose a head sentence of six years which will expire on 26 May 2024.

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Decision last updated: 28 June 2019