R v Coleman (No. 1)

[2024] NSWDC 575

District Court

New South Wales

Medium Neutral Citation:

R v Coleman (No. 1) [2024] NSWDC 575

Hearing dates:

1-2 May 2024
6-10 May 2024
13-17 May 2024
20-24 May 2024
16 August 2024
27 September 2024
9 October 2024

Date of orders:

9 October 2024

Decision date:

09 October 2024

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

Annexure A to this judgment entitled Facts for Sentencing is my determination of facts for sentencing.

Catchwords:

CRIME — Common law offence — Misconduct in public office — Where a Detective Senior Constable of NSW Police Force abused his position as an investigating officer of complaints of sexual assault to pursue his own sexual gratification with the complainant — Non-consensual sexual touching in police car and at police station — Fellatio and penile/vaginal sexual intercourse at police station — Offering money to the victim in exchange for sexual favours — Failure to disclose conflict of interests and maintain a professional relationship with the complainant as an investigating police officer

CRIME — Sexual offences — Sexual touching — Touching breasts — Sucking breast

CRIME — Sexual offences — Sexual assault — Consent — Where consent is given reluctantly or obtained after persuasion

SENTENCING — Fact finding — Finding of facts express or necessarily implied in the verdicts — Where consent or requisite knowledge of consent is relevant to the seriousness of misconduct in public office — Court not bound to adopt the version of facts most favourable to the offender — Onus on the offender to prove actual consent on the balance of probabilities — Where jury is not wholly satisfied beyond reasonable doubt by the evidence of the victim — Where jury does not accept all the evidence of the offender — Where the offender is convicted of sexual touching but not sexual assaults — Where the guilty verdict for sexual touching is consistent with both the victim’s and the offender’s version of events — Where the not guilty verdicts for sexual assaults are equally consistent with the victim having consented and with the offender lacking the requisite knowledge

Legislation Cited:

Crimes Act 1900 (NSW), s 61HI(1)

Police Act 1990 (NSW), s 7

Cases Cited:

Cheung v The Queen (2001) 209 CLR 1

Davis v R [2024] NSWCCA 120

Filippou v The Queen (2015) 256 CLR 47

Liberato v The Queen (1985) 159 CLR 507

R v Mueller [2005] NSWCCA 47

R v Obeid (No. 12) [2016] NSWSC 1815

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Glen Coleman (Offender)

Representation:

Counsel:
Ms Kate Nightingale (Crown)
Mr Joel Brook (Offender)

Solicitors:
Office of the Director of Public Prosecutions NSW (Crown)
Anderson Boemi Lawyers (Offender)

File Number(s):

2022/00145977

Publication restriction:

[Pseudonyms are used for persons except for the Offender and police officers.]

Judgment

1. On 27 September 2024 I heard the parties’ arguments on determination of facts for sentencing. The hearing proceeded on the basis of a document entitled R v Coleman Draft Proposed Determination of Facts for Sentencing (Facts Only) which I caused to be forwarded to the parties on 25 September 2024. That document was the culmination of a running correspondence between the parties and the Court following the conviction of the Offender on 24 May 2024 of Counts 1, 5 and 7, following a trial by jury. On that date, the parties identified 27 September 2024 as the appropriate available date for sentencing hearing.

2. MFI 3 contains the documents in that running correspondence. On 30 May 2024 the parties delivered a document proposing facts for sentencing and identifying facts in dispute. For the disputes, the Crown provided transcript references to the Victim’s evidence in chief only and the Defence provided no transcript references. Overall the factual content for sentencing on the Misconduct in Public Office offence (Count 1) was inadequate. On 16 August 2024 the Court delivered to the parties a much expanded statement of proposed facts which included transcript references to the evidence of the Victim and of the Offender, which document was entitled Proposal of Statement of Facts for Consideration of the Parties. On 20 August 2024 the parties returned the Court’s last-mentioned document with marking up bearing the parties’ margin noted comments where facts remained disputed. Finally the (first mentioned document) R v Coleman Draft Proposed Determination of Facts for Sentencing (Facts Only) was forwarded on 25 September 2024. In addition, at the hearing, the Victim read her Victim Impact Statement.

3. This judgment resolves the disputes as to facts for sentence by reference to the document entitled R v Coleman Draft Proposed Determination of Facts for Sentence (Facts Only) bearing in mind the MFI 3 documents and the parties’ submissions at the sentencing hearing. All other facts in that document remained undisputed and have been adopted.

4. Unfortunately, transcript of the hearing of 27 September 2024 could not be obtained prior to this judgment. The Offender has been incarcerated since 24 May 2024 on remand/protective custody conditions. Delay should be avoided.

Paragraph 18

5. The Crown sought amendment to this paragraph. I understood the crux of the submission to be that the paragraph should read so that it could not be inferred that the Victim was promoting to the Offender that she held an interest in performing escort work. The Victim’s evidence was that, unsolicited by the Offender, she discussed with him a conversation concerning escort work in which her friend had said things to her about that kind of work. The Offender’s evidence was that the Victim told him that she was definitely looking at escort work in which she could earn between $6,000 and $8,000 a week and that she would be willing to have sex with men of his age: T584.45.

6. The significant fact for sentence is that common evidence was that the subject of escort work came up in discussion. The precise content of the discussion, such as the source of information discussed, is not significant. There was no evidence that the Victim undertook escort work. The following italicised portion of paragraph 18 is, in my opinion, an appropriate amendment by addition:

“During the same meeting on 31 March 2022, the Offender asked the Victim about her weekend. In the discussion which followed, the Victim told the Offender that she had an interview at the Velvet Underground for employment as a striptease dancer, in Sydney CBD. The Victim informed the Offender of information she had learned regarding escort work. This was unsolicited by the Offender. The Offender said that he felt sexually excited and aroused when, in their discussions, the Victim spoke of strip dancing and escort work.”

Paragraph 22

7. Counsel for the Offender objected to inclusion of the fact that the Offender wanted a lap dance from the Victim when he attended the Velvet Underground on 5 May 2022 to watch her strip dance. The transcript reference on which the Crown relies is the same as was dealt with in paragraph 85 considered below. For the same reasons, I accept the Defence submission that the second sentence which reads “The Offender wanted a lap dance from the Victim” be deleted.

Paragraph 23

8. The Crown properly identifies the necessary substitution of “touching” for “assaults” following the word “sexual”. This was a typographical error effectively misdescribing the offence. Reasons are not required.

Paragraph 24

9. The Crown seeks the addition of words indicating that the Offender chose to meet the Victim away from the Windsor Police Station and in a public place. The Victim’s evidence was that she suggested that they meet at Kable Street “because it’s still a public place, I know that area, I knew that there was somewhere to sit”: T93.03. The Offender gave evidence that it was not uncommon practice to meet complainants in sexual assault investigations away from the police station because sometimes it was their preference to do so.

10. In my opinion, that the Offender met with the Victim at Kable Street, away from the police station, is not a fact of significance characterising his conduct necessarily consistent with any verdict, in particular the verdict of Guilty to Count 1. The jury returned Not Guilty verdicts to each of the Count 2 and Count 3 allegations of sexual touching, which the Victim described and said had occurred at Kable Street. The rational and logical conclusion arising from those verdicts is that the jury did not accept beyond reasonable doubt the Victim’s evidence describing the Kable Street meeting. The evidence does not beyond reasonable doubt establish that in so meeting, he was avoiding detection or otherwise acting inappropriately when so meeting the Victim. Indeed, on the balance of probabilities, the evidence supports a finding, not necessary for the purposes of sentencing, that the meeting away from the police station was in accordance with the Offender’s usual and appropriate police practice. It is appropriate, for factual accuracy, that paragraph 24 read as follows:

“The Offender contacted the Victim and they arranged to meet away from the Police Station at Kable Street on about 7 April 2022.”

Paragraph 37

11. The Crown suggested and the Defence did not oppose substitution of the words “expressed it” with the word “agreed”. The paragraph will read:

“The Offender continued communicating with the Victim toward sexual engagement with her. At all times he was aware of his obligation to put a stop to those conversations and say to the Victim, as he agreed in evidence: ‘That’s not professional. We need to keep this professional’ and disclose his conflict of interest to his superior: T586.”

Paragraph 39

12. The Crown helpfully pointed to correction of the typographical error in the description of the offence. “touching” is to be substituted for “assaults” following the word “sexual”. No reasons are required.

Paragraph 40

13. The Crown suggested and the Defence did not oppose insertion of a reference to the Offender wearing his police issue firearm when he met with the Victim at Colonial Reserve. This is in accordance with the evidence. This is an agreed fact relevant to sentencing and those words should be inserted. Paragraph 40 will read:

“On about 20 or 21 April 2022 the Victim met with the Offender on her request that he meet her at Colonial Reserve to discuss her request concerning her boyfriend. They had not met since at Kable Street on 7 or 8 April 2022: cross examination T234; 239.40. It was daytime and there were people about at the park. The Offender arrived first and when the Victim arrived she walked up to the driver’s side of the Offender’s Police vehicle. The Offender told her to get into the car. He was wearing his police issue firearm. The Offender was annoyed and told her not to get him to look into people, that was not what he did. The Victim agreed that in the car at Colonial Reserve she and the Offender discussed her giving him a lap dance in return for $400: cross examination T236.45–237.8; Examination in chief T125.”

Paragraph 46

14. The Crown seeks expression of the elements essential to the Count 5 offence including that the sexual touching was not consensual and that the defendant was possessed of the requisite knowledge that it was not consensual. The Defence agreed with the Court that this was inherent to the verdict of Guilty. The subheading preceding paragraph 46 will read:

“COUNT 5 – TOUCHING BREASTS – WITHOUT CONSENT WHILST THE OFFENDER WAS POSSESSED OF THE REQUISITE KNOWLEDGE OF LACK OF CONSENT – VERDICT GUILTY”

Paragraph 54

15. Again the Crown helpfully seeks correction of the typographical misdescription of the offending. After the word “sexual” the words “touching and” should be inserted before the word “assault”. With this correction the passage reads:

“Count 7 (touching and sucking breast), Count 8 (fellatio), Count 9 (penile/vaginal intercourse) and Count 10 (cunnilingus) were charged allegations of sexual touching and assault, without consent, whilst the Offender had the requisite knowledge of the Victim’s lack of consent, alleged to have occurred during their meeting in Windsor Police Station.”

16. No reasons are required.

Paragraph 57

17. The Crown argues that the sexual engagement which occurred at Windsor Police Station on 5 May 2022 is not to be described as transactional or consensual. The Crown’s first position is that the verdicts of Not Guilty to Counts 8, 9 and 10 are consistent with the jury being satisfied beyond reasonable doubt that the sexual intercourse was without consent but that the jury was not satisfied beyond reasonable doubt of the element of the Offender’s requisite knowledge of lack of consent.

18. The Crown argues that the Victim’s evidence is consistent with her not having consented.

19. The Crown’s alternative submission is that the Court would make no finding that the sexual intercourse was consensual and that the jury was not satisfied beyond reasonable doubt of the elements of lack of consent and the Offender’s knowledge.

20. The Offender submits that the jury rejected the evidence relied on by the prosecution to establish that Counts 8, 9 and 10 alleged events occurred without the Victim’s consent. The Offender points to the fact that the Victim took the $70 paid by the Offender, “in circumstances where there were mutual negotiations between them relevant to both the Victim’s and the Accused’s state of mind. The jury accepted that the acts the subject of Counts 8, 9 and 10 were consensual and transactional”: MFI 3.

21. Whilst each of the Victim and the Offender described the Counts 8 and 9 events of sexual intercourse to have occurred, their evidence included inconsistencies as to the manner and order of events in which the sexual intercourse occurred.

22. In my view the rational approach to fact finding includes taking into account the Not Guilty verdicts on Counts 2, 3, 4, 6, 8, 9 and 10 and the Guilty verdicts on Counts 5 and 7 as showing that on a whole trial basis the jury did not accept the Victim’s evidence beyond reasonable doubt in regard to many accusations prosecuted. The jury was given a direction in accordance with Liberato v The Queen (1985) 159 CLR 507. It cannot be known whether and to what extent the jury accepted the evidence of the Offender as truthful and accurate where it disagreed with the evidence of the Victim.

23. The Court is constrained to making findings of fact that are consistent with the jury’s verdict: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (“Cheung”) and as sentencing judge, I cannot know exactly whether or not the jury was satisfied beyond reasonable doubt that the Victim did not consent but returned Not Guilty verdicts to the sexual intercourse Counts 8 and 9 being not satisfied beyond reasonable doubt as to the requisite knowledge of the Offender. In relation to those Counts, the jury received the usual direction of the elements of consent and of knowledge. As the plurality explained in Cheung at [17]:

“If… a jury returns a general verdict upon a single count in an indictment, the resolution of issues which is express, or necessarily implied, in that verdict, is binding upon the sentencing judge. But the judge does not know the approach taken by the jury, or individual members of the jury, to particular facts relevant to the issues, or to the evidence of particular witnesses, except to the extent to which, by necessary implication, that is revealed by the verdict.”

24. In my opinion, the Crown’s first position submission seeks finding of facts not necessarily implied in the verdicts.

25. Further, the verdict of Guilty to Count 7 is not necessarily consistent with the Victim’s description of the Offender touching/sucking her breast, but is equally consistent with the Offender’s description of his touching/sucking her breast. This is because, on the Offender’s evidence, whilst he asked and the Victim did show him her breast, he did not seek her permission to, nor did she agree to his touching or sucking it.

26. The verdict of Not Guilty to Count 10 deserves separate consideration because whereas the Victim and the Offender gave evidence that sexual touching of the breast, fellatio and penile/vaginal intercourse, the subjects of Counts 7, 8 and 9 did occur, only the Victim said that cunnilingus, the subject of Count 10 occurred. The Offender denied that cunnilingus occurred. As sentencing judge, I cannot know whether the jury, or individual members of the jury, were persuaded beyond reasonable doubt that cunnilingus did occur, that if it did occur, it occurred without consent (the Victim having denied consent) or if it occurred without consent then that the Offender was not possessed of the requisite knowledge.

27. The logical and rational explanation for the verdicts of Not Guilty to Counts 8, 9 and 10 is that the jury was not wholly satisfied beyond reasonable doubt by the evidence of the Victim: Davis v R [2024] NSWCCA 120 at [121].

28. The Offender’s argument (quoted above as put in MFI 3 documentation) was that paragraph 57 should remain unchanged and that the finding of fact be that the Count 8 and Count 9 sexual intercourse was consensual in that it was transactional, that being consistent with the verdicts. This argument, in my opinion, misconstrues “consistency”. For the reasons stated above, those Not Guilty verdicts are equally consistent with the jury having been satisfied beyond reasonable doubt that each of those events of sexual intercourse occurred without consent as they are consistent with the jury having been not satisfied beyond reasonable doubt of the element of the Offender’s requisite knowledge.

29. The jury was directed, and the Elements Document provided, that:

“Consent which is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily. What the complainant’s state of mind was before or after the sexual intercourse might provide a guide, but the question is whether the Crown has proved that the complainant was not consenting at the time the sexual intercourse occurred.”

30. The Crown referred to evidence of the Victim and of the Offender as to what occurred at Windsor Police Station on 5 May 2022 and to evidence of facts before and after that event. One of the arguments put by the Crown concerning transactional negotiations before and after the event was that the $70 placed on the table by the Offender in the police station should be seen as disproportionate to those other negotiations in which hundreds of dollars were communicated and therefore inadequate to infer consent to sexual acts.

31. The Victim’s evidence in chief was that after completion of her statement in the John investigation, the Offender removed $70 in cash from his wallet, placed it on the table and said “It’s yours. Give me a head job”, to which she was shocked and responded “what? We can’t fuck in the police station. I have to go. I’m having lunch with my boyfriend.” Her evidence was that the Offender offered that they go to his car to which she responded “No, my boyfriend has my location, he can see where I am” and then the Offender said “Fine, I’ll just keep it”, and he snatched it off the table: T147.20–32. She said to the Offender “No way” in response: T147.38. The Victim said that she then felt bad and was scared that the Offender was not going to help in the sense that he would not continue to investigate her complaint. She subsequently conceded that the Offender never indicated that he would not investigate her complaint.

32. The Offender’s evidence included that the Victim asked him how much money he had with him and his response was $70. In keeping with the above quoted Victim’s evidence, the Offender’s evidence was that the $70 was for her to fellate him (ie: a “head job”). He denied that the Victim said that they could not “fuck in the police station” and that she said she was to have lunch with her boyfriend. He denied offering that they have sex somewhere else such as in his car and that when the Victim said “No” to his proposition he snatched the money from the table and that she said “no, wait”: T552; 623.

30. In my opinion, the evidence just referred to of the Victim and of the Offender weakens the persuasion of the surrounding circumstances of higher money values having been negotiated for sexual favours. Both the Victim and the Offender gave evidence that the $70 was placed on the table by the Offender specifically in the making of a request for the Victim to fellate him.

31. The Victim’s evidence of the sexual engagement involving fellatio and penile/vaginal intercourse which followed, amongst the whole of the evidence, shows that she spoke and acted in a manner reasonably available to be interpreted by the Offender as not communicating that she did not consent in the face of the Offender’s begging persuasion. Her evidence is consistent with her controlling the duration of the sexual intercourse by fixing the time duration of “a minute”. Her evidence that she “realised that there was no getting out of it”, on the whole of the circumstances, was not evidence of her being detained or otherwise not free to leave the interview room. In relation to fellatio her evidence was that she said “one minute, and then I want to go” before the Offender unzipped his pants and pulled out his penis. Her description includes him waving his penis in front of her before she started the timer on her phone and performed the fellatio. He did not ejaculate. She described that she grabbed her belongings in readiness to leave when the Offender asked “let me put it in” to which she responded “what? No”. It was her evidence that on the Offender asking “Please, just – just for a minute”, she said “can I please go? I just want to go” and when the Offender again said “Please” the Victim said “Can I go after this?” to which he answered “yes”. The Victim then said “Fine, you have one fucking minute, and then I’m going” and she explained that she did agree to 1 minute penile/vaginal sexual intercourse because the Offender “kept pestering” her. In further evidence concerning the fellatio, during cross examination, she said the Offender “kept begging”. In relation to the penile/vaginal sexual intercourse, she said: “The timer went on – off. It wasn’t working. It was too small. And it’s not – it – it’s – like, it’s not happening. And then he turned around and he’s like, ‘Please, come on. Like, let me try one more time.’” In other evidence she said that penile/vaginal sexual intercourse was stopped by her: “I stopped. He didn’t. I moved.” She said that she then pulled her dress down, picked up her phone, keys, vape and took the $70 cash. The above evidence is taken and summarised from particularly the following references: T153; T154; T159; T255; T256; T259.

32. At T260, in cross examination the Victim gave the following evidence:

“Q. And it was an exchange of sex for money?

A. No, it wasn’t.

Q. You timed it?

A. I timed it. I wanted to have at least some control of what was going on. Because I wasn’t getting any out of it.

Q. Well … you didn’t need to take the money, if that’s the case, isn’t it?

A. I – it was about the money.

Q. I’m just – but you took the money. You agree with that, don’t you?

A. Yes, I did, but not…”

36. (Where the Victim answered “it was about the money”; which I do recall, the Victim may have accidentally omitted the word “not” or the expression “not only” which would accord with the balance of her evidence.)

37. The direction to the jury, which I have set out above, is consistent with R v Mueller [2005] NSWCCA 47 (“Mueller”), the Criminal Trial Bench book and was agreed to by the parties prior to closing addresses. In Mueller, Studdert J, with whom Hunt AJA and Hulme J agreed, determined at [41] that the primary judge’s direction to the jury “A woman may consent to a sexual act for a variety of reasons but if she consciously permits it, that act is not without her consent” was not a misdirection. At [135], Hulme J added “Consent given reluctantly or only after a deal of persuasion is still, as a matter of law, consent.”

38. Parliament has over the intervening years legislated as to what is not consent. I bear those public policy statutory provisions in mind as at 5 May 2022. The jury were directed and the Elements Document instructed the law as at the dates of offending. As at 5 May 2022, for the Victim to have consented, her conscious permission, at the time of the sexual activity had to be free and voluntary: s 61HI(1) Crimes Act 1900 (NSW).

39. For the purposes of sentencing, because the Crown presses for factual findings of lack of consent and/or lack of Offender’s requisite knowledge in relation to Counts 8 and 9, the onus is on the Crown to satisfy the sentencing judge of those facts beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (“Olbrich”). For the reasons given I am not persuaded that the Not Guilty verdicts to Counts 8 and 9 or either of them is consistent with the jury having been satisfied beyond reasonable doubt of those events occurring without the Victim’s consent whilst the Offender was not possessed of the requisite knowledge for conviction.

40. Separate consideration is required of the Defence argument that for the purposes of sentencing, the evidence proved that the Victim did consent. The Court must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70] (“Filippou”). The Court is not bound to adopt the view of the facts most favourable to the Offender. The Offender bears the burden of proof at the requisite standard of balance of probabilities that the sexual engagement was transactional and consensual: Filippou at [64], [66]; Olbrich at [27]–[28].

41. In my view, the evidence was not clearly and definitely persuasive of the Victim’s lack of consent in the circumstances of the Offender’s persuasion by begging and persistence. The evidence is, on the balance of probabilities, consistent with the Offender having believed that the Victim was consenting or in fact having reasonable grounds for that belief.

42. Determination of this issue is relevant to sentence for the Count 1 verdict of Guilty. It goes to the seriousness of the Offender’s misconduct. The true victim of his misconduct in public office is the community’s trust in his public office. The damage done by the Count 1 offending is to the public office: R v Obeid (No. 12) [2016] NSWSC 1815 per Beech-Jones J (as his Honour then was) at [84].

43. On either result of without consent or with consent, the state of mind of the Offender was, on the balance of probabilities, that he was not engaging in sexual intercourse with the Victim without her consent. For these reasons, I determined that paragraph 57 requires amendment. It is not necessarily consistent with the verdicts including the verdicts of Not Guilty to Counts 8 and 9 that the sexual intercourse (fellatio and penile/vaginal) was transactional in that it was transacted for $70. The Victim’s evidence of her state of mind when denying that fact is consistent with my finding, on the balance of probabilities, of the Offender’s state of mind and my stated assessment of the Victim’s evidence on the issue of lack of consent. Accordingly, paragraph 57 will read:

“The Offender is to be sentenced on the basis that he engaged in fellatio and penile/vaginal sexual intercourse with the Victim in Interview Room 1 at Windsor Police Station on 5 May 2022, whilst believing the sexual intercourse to be not without consent.”

Paragraph 59

44. The Crown seeks removal of the second sentence which identifies the Snapchat identifier as one not viewed by the Victim’s boyfriend. Whilst there was evidence supportive of that description of the identifier, it became the personal medium for communication between the Victim and the Offender accomplished by the Victim providing that identifier. This fact is of significance to the consideration of misconduct consistent with the Count 1 verdict. I agree with the Crown’s concern that reference to the identifier being not reviewed by the Victim’s boyfriend is unnecessarily offensive to the Victim and in any event, may be inaccurate as to her boyfriend’s access to her Snapchat. It is for those reasons not necessary. Paragraph 59 will read:

“The Victim added her discrete Snapchat identifier Mia to the Offender’s phone.”

Paragraph 60

45. The Crown points out that the word “agreed” following the word Victim in the first line, second sentence, is a summary expression not carrying what the Crown referred to as the “nuance” of the circumstances of the Victim’s agreement. Counsel for the Offender submitted, as he did in relation to paragraph 57 that the Count 8 and Count 9 sexual intercourse was consensual in that it was transactional, for the reward of $70. For the same reasons expressed in relation to paragraph 57, I determine that paragraph 60 read as follows:

“The Offender put $70 on the table in the interview room. The Victim performed fellatio and penile/vaginal sexual intercourse with the Offender of short duration, in circumstances of the Offender’s begging and persistence. The Offender checked that the hallway outside of Interview Room 1 was clear, set the “In Use” sign to one door and at the door to the other hallway on the opposite side of the room, because the “In Use” sign did not work, stood in front of the peephole. The Victim then performed fellatio on the Offender for a short time of around 20 to 30 seconds. The Offender asked her to “let me stick it in” with which she complied expressly for a short duration in terms: “okay, but only for one minute”. The Victim stood up, bent over at a slight angle, put her hand on the drawing board on the wall and the Offender entered his penis into her vagina for a short duration of around 10 to 15 seconds before the Victim moved away ending the penile/vaginal intercourse. The Offender did not ejaculate.”

Paragraph 61

46. As for the subheading for Count 7, I accede to the Crown’s request that the inherent elements of the offence be included. The subheading will be amended to read:

“COUNT 7 – TOUCHING AND SUCKING BREAST – WITHOUT CONSENT WHILST THE OFFENDER WAS POSSESSED OF THE REQUISITE KNOWLEDGE OF LACK OF CONSENT – VERDICT GUILTY”

Paragraph 66

47. The Crown requests and the Offender does not oppose a completion of this paragraph with the fact that the Victim did not respond. The paragraph will read as follows:

“On 10 May 2022 at 9:51am the Offender sent the Victim a message via Snapchat which read ‘Where’s my pussy pic you promised me 5 days ago?’. The Victim did not respond.”

Paragraph 85

48. This paragraph refers to the Offender having attended the Velvet Underground Club with the hope of watching the Victim perform a strip dance. The Crown seeks the addition that the Offender wanted to get a lap dance. The Defence points to transcript (T586) where the Offender denied that and maintained he wanted to watch her strip. The fact for which the Crown presses for inclusion concerns his state of mind. His denial was direct evidence. As is exposed in the reasoning concerning paragraph 57, and generally by the verdicts, the rational and logical conclusion is that the jury did not accept or reject the whole of the evidence of either the Victim or the Offender. It would be against the interests of the Offender to make the addition which the Crown seeks, in circumstances where he denied that fact and it is not necessarily consistent with the verdict of guilty to Count 1 to find the fact to have been proved beyond reasonable doubt. Further, the Crown relies on the evidence of another witness who was a strip dancer and worked at the Velvet Underground Club. At T331.19 the question and answer to which the Crown took me, is as follows:

“Q. And what did she tell you about?

A. She told me that she went for an interview and that the investigator wanted to – was there and wanted to get a dance off her.

Q. Did she say whether or not that actually occurred?

A. I didn’t occur because she was just there for an interview.”

49. Obviously that is evidence from a third-party of something the third party understood to have been said to her by the Victim of the Offender’s state of mind. Inherently it may include imprecision. The expression “… to get a dance off her”, which did not in fact occur in circumstances of it being an interview for strip dancing, I do not understand to be necessarily inconsistent with watching the Victim perform a strip dance. I reject the Crown application. Paragraph 85 will remain unchanged.

Paragraph 91

50. Initially both parties sought that the content of this paragraph not be included. I indicated that in my view the Offender continuing with his misconduct after “moments of clarity” weighs on the side of seriousness of the offending. The Crown then withdrew its opposition. I understood during argument that counsel for the Offender resiled from his earlier objection, not on the basis of inviting a finding of fact weighing toward the seriousness of the offending but because it is in fact the Offender’s own evidence referred to. Paragraph 91 will remain unchanged.

51. Annexure A to this judgment entitled Facts for Sentencing is my determination of facts for sentencing.

Annexure A Facts for Sentencing

COUNT 1 - MISCONDUCT IN PUBLIC OFFICE - VERDICT GUILTY

52. All of the following described events, including those the subject of Counts to which the jury returned verdicts of Guilty are relevant to sentence for the verdict of Guilty on the Count 1 charge of Misconduct in Public Office.

BACKGROUND

53. NSW Police Officers are required to comply with a number of policies, procedures and guidelines, including:

• NSW Police Force Statement of Values, ^[1]

• NSW Police Code of Conduct and Ethics, ^[2]

• Conflict of Interest Policy Statement, ^[3]

• Procedures for Manage Conflicts of Interest. ^[4]

  1. Exhibit R.

  2. Exhibit U.

  3. Exhibit V.

  4. Exhibit W.

54. The NSW Police Force Statement of Values reproduces s 7 of the Police Act 1990 (NSW), which relevantly here, provides that each member of the NSW Police Force is to act in a manner which:

• places integrity above all,

• upholds the rule of law,

• preserves the rights and freedoms of individuals,

• seeks to improve the quality of life by community involvement in policing,

• strives for citizen and police personal satisfaction,

…

• ensures that authority is exercised responsibly.

55. The NSW Police Code of Conduct and Ethics (the “Code of Conduct and Ethics”) relevantly provides that an employee of the NSW Police Force must:

• behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty,

• act with care and diligence when on duty,

• know and comply with all policies, procedures and guidelines that relate to their duties,

• treat everyone with respect, courtesy and fairness,

• comply with any lawful and reasonable direction given by someone in the NSW Police Force who has authority to give the direction,

• comply with the law whether on or off duty,

• take reasonable steps to avoid conflicts of interest, report those that cannot be avoided, and co-operate in their management,

• not make improper use of their position or NSW Police Force information or resources.

56. The Conflict of Interest Policy Statement and the Procedures for Managing Conflicts of Interest require that all individuals engaged in activity on behalf of the NSW Police Force:

• identify actual, potential and perceived conflicts of interests,

• take all reasonable steps to avoid conflicts of interest where possible,

• seek advice if uncertain whether a conflict of interest exists,

• report any conflicts of interest if they cannot be avoided,

• put the public interest before private interest,

• cooperate in the management and resolution of conflicts of interest,

• report any noticeable change in circumstances relating to conflicts of interest that are being managed.

57. The Offender was sworn in as a police officer on 31 August 2001. The Offender worked at Blacktown Detectives from 2 July 2006, completing the Detectives Education Program and commenced the designation of Detective Senior Constable from 30 June 2008. From 19 September 2011, the Offender was permanently attached the State Crime Command, Sex Crimes and Child Abuse Squad where he worked as a Detective. ^[5]

    5. Exhibit G, fact #2.

58. On 9 May 2001 the Offender signed a letter from Commissioner Ryan acknowledging he had received the Code of Conduct and Ethics.

59. From 16 January 2022 the Offender commenced a temporary assignment (secondment) at the Windsor Police Station, Detectives Office.

60. On 20 January 2022, as part of the Offender’s induction process to Windsor Police Station he was reminded of the Code of Conduct and Ethics.

61. On 30 April 2022 he commenced a 4-week secondment at the Extended Supervision Team of the State Crime Command. ^[6]

    6. Exhibit G, fact #3.

62. The relevant facts occurred between 17 February 2022 when he first met the Victim and 20 May 2022 when he was arrested.

CONDUCT IN RELATION TO THE VICTIM

63. On 17 February 2022 the Offender first met the Victim when he was assigned by his superior and Team Leader Detective Sergeant Harvey to investigate a complaint by the Victim concerning her second cousin, Simon. The complaint involved matters of a sexual nature. The Victim had sent Simon intimate photographs for payment and Simon was threatening to post those intimate photographs on the internet. ^[7]

    7. T55.28.

64. On that day, the Victim attended Windsor Police Station with two of her case workers. At the time of the events the Victim resided at Richmond House, a residence for young persons at risk of homelessness. The Victim attended university, worked three jobs and received government assistance. She experienced some financial hardship. At the time of the offences, the Victim was 19 years of age.

65. On 2 March 2022 the Victim again met with the Offender at Windsor Police Station. The Victim provided details of her complaint concerning Simon. The Offender asked to see the intimate photographs that the Victim sent to Simon. The Offender said that he needed to compare the photographs with the photographs Simon had on his phone. ^[8] The Victim did not give the photos to the Offender. The Offender told the Victim whilst Simon’s conduct was immoral it was not criminal. After being told this, the Victim asked the Offender to investigate a complaint of sexual intercourse without consent concerning her ex-boyfriend, John. The Offender accessed COPS and reviewed the Police computer holdings in relation to the Victim. ^[9]

    8. T75.24.

    9. T76.

66. Between 2 March and 31 March 2022 there was contact between the Victim and the Offender.

67. On 31 March 2022 the Victim attended Windsor Police Station and met with the Offender about her complaint concerning John. The Victim and the Offender commenced a police statement in relation to the John complaint. ^[10] The Offender asked the Victim to detail the sexual misconduct of John, during the course of taking the statement and as part of the investigative process.

    10. T521.20.

68. The Offender recognised the vulnerability of the Victim as a sex assault complainant. When giving evidence in chief at T521.21–30, he described the reason for terminating that third meeting before completion of her statement in the John investigation, as her having said “I can’t” and “I’ve had enough for the day”. The Offender explained that because “… when you’re taking a sexual assault statement, the Victim sets the timetable.” The Offender’s evidence in general admitted his expert appreciation of the vulnerability of the Victim as a sex assault complainant.

69. During the same meeting on 31 March 2022, the Offender asked the Victim about her weekend. In the discussion which followed, the Victim told the Offender that she had an interview at the Velvet Underground for employment as a striptease dancer, in Sydney CBD. The Victim informed the Offender of information she had learned regarding escort work. This was unsolicited by the Offender. The Offender said that he felt sexually excited and aroused when, in their discussions, the Victim spoke of strip dancing and escort work.

63. The Offender accessed the internet site of the Velvet Underground. ^[11]

    11. Exhibit G, fact #7.

64. The Offender gave evidence that in a text message the Victim offered him a lap dance for $200 if he attended the club. ^[12] The Victim accepted in evidence that there were other communications between her and the Offender leading up to the Velvet Underground interview, including the Victim inviting the Offender to come and see her there at the job interview on 5 April 2022.

    12. T525.42.

65. The Police Dutybook entry made by the Offender did not include any reference to anything of a sexual nature being discussed on 31 March 2022. ^[13]

    13. Exhibit S, page 3.

66. On 5 April 2022, the Offender attended the Velvet Underground to watch the Victim strip dance. On his arrival the Victim was not there. The Offender sent text messages to the Victim telling her to hurry up ^[14] and wrote a text message which read “You better not be joking with me.” ^[15] But the Victim was only at the club for an interview. The Offender left the club without seeing the Victim.

    14. T90.37.

    15. T526.29.

KABLE STREET

74. Count 2 (touching breasts) and Count 3 (touching genitals) were charged allegations of sexual touching without consent, whilst the Offender had the requisite knowledge of the Victim’s lack of consent, alleged to have occurred during their meeting in a police vehicle at Kable Street.

75. The Offender contacted the Victim and they arranged to meet away from the Police Station at Kable Street on about 7 April 2022.

76. The Offender met the Victim at a table and provided her with four blank pieces of paper on which he wanted her to draw some diagrams in relation to her complaint concerning John. It started raining, so the Offender asked the Victim if she wanted to sit in a car and asked the Victim which car she preferred. The Offender and the Victim sat in the police car driven to the location by the Offender. The Offender gave evidence that the Victim had shown him a photograph of her breasts and her tattoo, which was on her mobile phone. ^[16] The Victim denied that this occurred.

    16. T532.6.

77. Count 2 was an allegation that at the Kable Street meeting the Offender touched the Victim’s breasts. Count 3 was an allegation that at that meeting the Offender touched the Victim’s genitals. The jury returned verdicts of not guilty to each of those counts. The Victim’s evidence was that the Offender touched her on her upper right thigh and rubbed it, then started grabbing at her on the outside of her clothes – over her genitals. She said that she froze and then asked if she could leave the Offender’s police motor vehicle in which they were meeting whilst it was raining outside. She said that the Offender asked to see “my boobs” and then touched her breasts under her clothing and underneath her bra: T106.45–109.01. The Victim demonstrated with her right hand in front of herself, palms gently cupped as the manner in which the Offender rubbed the outside of her clothes on her vagina: T113.28. The Victim maintained her evidence when challenged in cross examination: T228.

78. The Offender denied that there was any physical contact between him and the Victim at Kable Street: T532.40. The Victim and the Offender said that they discussed her provision of sexual favours to him in return for money. The essential difference in their evidence of discussions at Kable Street is that whereas the Victim said that she was not contemplating to have sex with him for money, the Offender said that she expressed her interest to do so. It is not necessary for the determination of facts consistent with the verdicts to resolve that difference.

79. The Offender did not make any record of this meeting in his police duty book or on the COPS system.

80. For consistency with the verdicts, the Offender is to be sentenced on the basis that the alleged physical contact of Counts 2 and 3 did not occur.

81. After this meeting the Offender and the Victim communicated with each other and there were negotiations for sex in return for money, and lap dances in return for money.

82. On 7 April 2022, the Offender made a COPS event entry and asked to be assigned the investigation in relation to the Victim’s allegation against John. He did this so that he could remain in pursuit of his sexual interest in her.

83. On 17 April 2022, the Victim called the Offender three times and sent three messages at about 1:25am. ^[17] The Offender called the Victim at 10:36am, but she did not answer this call. At 11:08am the Victim called the Offender back and they spoke for about 10 minutes. ^[18] The Victim wanted to discuss her current boyfriend. ^[19] The Victim agreed that this conversation was unrelated to the John investigation.

    17. Exhibit E, #4 to 9.

    18. Exhibit E, #11.

    19. T234.4

84. Whilst the Victim and the Offender gave different evidence of what was said and when it was said, the common evidence is supportive of the following facts.

85. Following their meeting at Windsor Police Station on 31 March 2022, the Offender attending the Velvet Underground strip club on 5 April 2022 and their meeting at Kable Street on about 7 April 2022, the Victim’s contemplation of working as a strip dancer had been discussed, escort work had been raised and following the Offender discussing with the Victim the transactional details of sexual engagement for money, and their contact over the Easter weekend; the Offender failed to disclose to Detective Sergeant Harvey more than that he had been receiving after hours contact to his mobile phone from the Victim.

86. His failure to disclose those interactions occurred as follows: on a date after 17 April 2022, Detective Sergeant Harvey and the Offender had a conversation about the Victim. He had returned to work from the Easter weekend. The Offender attended the Black Duck Café with Detective Sergeant Harvey. The Victim was working at the café. On the way back to the Police Station the Offender told Detective Sergeant Harvey about the late night telephone calls he received from the Victim. ^[20] Detective Sergeant Harvey told the Offender to tell the Victim to call the Police Station if she had any problems and told the Offender not to see the Victim alone. Detective Sergeant Harvey gave evidence that she was concerned about the unprofessional nature of the relationship between the Offender and the Victim. ^[21] At the time the Offender was aware of his duty to disclose his conflict of interest between his duties as a Police Officer and his personal relationship with the Victim.

    20. T588.15.

    21. T303.18 and T588.15.

87. The Offender conceded during cross examination that he did not tell Detective Sergeant Harvey of his sexual interest in the Victim, and specifically of those events just described for the following two reasons:

1. he did not want to be removed from the John investigation because he wanted to pursue his sexual interest in the Victim; and

2. because he knew that his behaviour was improper and in breach of the Code of Conduct and Ethics and Conflict of Interest procedures: T586.

88. The Offender continued communicating with the Victim toward sexual engagement with her. At all times he was aware of his obligation to put a stop to those conversations and say to the Victim, as he agreed in evidence: “That’s not professional. We need to keep this professional” and disclose his conflict of interest to his superior: T586.

89. Between 17 April and about 20 or 21 April 2022 (see [43] below for reference to evidence of the date), the Victim contacted the Offender to ask if he could make enquires about her then boyfriend, as she was concerned her boyfriend was not telling her the truth. The Victim suggested and the Offender agreed to meet at Colonial Reserve. ^[22] The Victim agreed that her request concerning her boyfriend had no relation to the John investigation. ^[23]

    22. T234.47.

    23. T235.17.

COLONIAL RESERVE

90. Count 4 (touching genitals), Count 5 (touching breasts), Count 6 (placing the Victim’s hand on the Offender’s penis) were charged allegations of sexual touching without consent, whilst the Offender had the requisite knowledge of the Victim’s lack of consent, alleged to have occurred during their meeting in a police vehicle at Colonial Reserve.

91. On about 20 or 21 April 2022 the Victim met with the Offender on her request that he meet her at Colonial Reserve to discuss her request concerning her boyfriend. They had not met since at Kable Street on 7 or 8 April 2022: cross examination T234; 239.40. It was daytime and there were people about at the park. The Offender arrived first and when the Victim arrived, she walked up to the driver’s side of the Offender’s Police vehicle. The Offender told her to get into the car. He was wearing his police issue firearm. The Offender was annoyed and told her not to get him to look into people, that was not what he did. The Victim agreed that in the car at Colonial Reserve she and the Offender discussed her giving him a lap dance in return for $400: cross examination T236.45–237.8; Examination in chief T125.

92. It is apparent from the Not Guilty verdicts to Counts 4 and 6, which with Count 5 are the three Counts alleging that the Offender sexually touched the Victim at the meeting in his car at Colonial Reserve, that the jury was not satisfied beyond reasonable doubt of parts of her evidence of what occurred in the car on that occasion.

93. The jury returned verdicts of Not Guilty to Count 4 (touching genitals) and Count 6 (placing her hand on his penis) which sexual assaults the Victim also said occurred in the police car, whilst parked in daylight at Colonial Reserve. The Victim’s evidence in chief included that the Offender stroked her right thigh up and down, to her genitals and that he touched her genitals over her clothing and then put his hand inside her tracksuit pants and inside her underwear and rubbed her vagina saying “you are wet and tight” at which point, she said, she “froze”: T125–126. Then, after asking to see her “pussy”, to which request the Victim’s evidence was that she complied in order to avoid the Offender touching her, by pulling back her tracksuit pants; the Offender pulled her underwear back, exposing the front of her genitals and said “It is magnificent”: T127. The Victim gave further evidence of the Offender repeatedly grabbing her hand and placing it on his penis when she pulled her hand away: T140.

94. The Victim agreed in cross examination that the Colonial Reserve meeting occurred on 20 or 21 April 2022 (T234.33; 239.40) and that 2 days later on 23 April, she messaged the Offender “call me when you get a chance please” and when the Offender’s response asked if she was working that night, the Victim messaged him: “No. Do you want to meet up for a bit”: T235–239.

95. The Offender denied physically touching the Victim at all in the police car at Colonial Reserve: T539.12–15. Plainly the jury rejected his denial in relation to the Count 5 touching of the Victim’s breast.

96. For consistency with the verdicts, the Offender is to be sentenced on the basis that the alleged physical contact of Counts 4 and 6 did not occur.

COUNT 5 – TOUCHING BREASTS – WITHOUT CONSENT WHILST THE OFFENDER WAS POSSESSED OF THE REQUISITE KNOWLEDGE OF LACK OF CONSENT – VERDICT GUILTY

97. The Victim told the Offender she had to go. She said “Can I please go? I want to go see my boyfriend.” The Offender replied that she went for stupid boys who don’t respect her. The Offender asked to see her breasts and she lifted her top. The Offender touched her breasts. ^[24] This was skin to skin contact.

    24. T126.23.

98. Prior to meeting at Colonial Reserve, negotiation of transactional sexual favours for money between the Offender and the Victim had continued. On the Offender’s evidence, he told her that he was not willing to pay $500 to have sex with her and they agreed on a sum of $400 and shook hands. When giving this evidence, the Offender referred again to his being “an old bloke” and the Victim being a young and attractive lady offering to have sex with him for money. He described his state of mind as excited but denied that he was physically aroused. He said that he thought “wow, this is really going to happen, and you know, this young lady who’s really lovely looking, wants to have sex with me”: T537.44–46.

99. At the end of their engagement in the police car at Colonial Reserve, the Offender reminded the Victim to complete the diagrams needed for her statement in the John investigation: T538.34–41.

100. The Offender, during examination in chief, said that at their prior meeting at Kable Street the Victim had shown him a photograph of a tattoo between her breasts, said that she was serious about getting into escort work and told him that she was probably willing to have sex with older men like himself. His evidence was that he was thinking “She’s an attractive young lady. She was going to get into escort work. She was offering to have sex with me for money. I didn’t really think about it”: T532.30. He said that between 19 and 21 April the Victim messaged him “I think I have an answer to our problem” he messaged back “what problem?” And then she messaged in reply: “I won’t have sex with you but I’ll give you oral and a show and you can cum on my bum like I want you to”: T535.45–50. The Victim’s evidence was that the Offender spoke of that proposal to her and she declined: cross examination T236.15–35. The Offender said that he called the Victim back in response to her message because he was interested in her proposal: T536.10.

101. Whilst evidence of the Offender and the Victim differed as to who proposed that sexual engagement and whether or not it was agreed; it was common to their evidence before the jury that by the time of the meeting at Colonial Reserve, they were discussing joining in sexual acts for which the Offender would pay the Victim. There is no contest on the evidence that the Offender was pursuing sexual acts with the Victim in consideration for which he would pay her money. It was after this that the Offender agreed with the Victim to meet at Colonial Reserve in Bligh Park.

102. The Victim needed money at the time of around the Colonial Reserve meeting and knew that agreeing to do a lap dance for the Offender was a quick way to make money. ^[25]

     25. T238.1.

103. Commencing on 23 April 2022, two to three days after the Colonial Reserve meeting, the Victim asked the Offender to call her: cross examination T238.45 and a few minutes later, messaged the Offender asking for them to meet: cross examination T239.7.

104. On 3 May 2022 the Offender arranged by text message to meet with the Victim at Windsor Police Station on 5 May 2022. It was agreed that they would meet at Windsor Police Station at around 1:15pm on 5 May. The Victim, after having messaged the Offender that she was running late, arrived at around 1:44pm.

WINDSOR POLICE STATION – 5 MAY 2022

105. Count 7 (touching and sucking breast), Count 8 (fellatio), Count 9 (penile/vaginal intercourse) and Count 10 (cunnilingus) were charged allegations of sexual touching and assault, without consent, whilst the Offender had the requisite knowledge of the Victim's lack of consent, alleged to have occurred during their meeting in Windsor Police Station.

106. Before 5 May 2022 the Victim had not completed her police statement in regard to her complaint concerning John.

107. The Offender was wearing his Police issue firearm. He and the Victim entered Interview Room 1. They sat down at the table in the room. The Victim signed her statement.

108. The Offender is to be sentenced on the basis that he engaged in fellatio and penile/vaginal sexual intercourse with the Victim in Interview Room 1 at Windsor Police Station on 5 May 2022, whilst believing the sexual intercourse to be not without consent.

109. After the Victim’s police statement was completed, the Offender asked her about their further transaction concerning sexual favours, not including sexual intercourse, and the Victim told him of the increased price of $600, she saying she wanted the money: Offender evidence in chief, T551.20.

110. The Victim added her discrete Snapchat identifier Mia to the Offender’s phone.

111. The Offender put $70 on the table in the interview room. The Victim performed fellatio and penile/vaginal sexual intercourse with the Offender of short duration, in circumstances of the Offender’s begging and persistence. The Offender checked that the hallway outside of Interview Room 1 was clear, set the “In Use” sign to one door and at the door to the other hallway on the opposite side of the room, because the “In Use” sign did not work, stood in front of the peephole. The Victim then performed fellatio on the Offender for a short time of around 20 to 30 seconds. The Offender asked her to “let me stick it in” with which she complied expressly for a short duration in terms: “okay, but only for one minute”. The Victim stood up, bent over at a slight angle, put her hand on the drawing board on the wall and the Offender entered his penis into her vagina for a short duration of around 10 to 15 seconds before the Victim moved away ending the penile/vaginal intercourse. The Offender did not ejaculate.

COUNT 7 – TOUCHING AND SUCKING BREAST – WITHOUT CONSENT WHILST THE OFFENDER WAS POSSESSED OF THE REQUISITE KNOWLEDGE OF LACK OF CONSENT – VERDICT GUILTY

112. The Offender asked the Victim to show him her breasts, which she did. The Offender put the Victim’s right breast in his mouth for a short duration of a couple of seconds. Neither the Victim nor the Offender said in evidence that he asked to touch or suck her breast or that the Victim agreed to the Offender touching or sucking her breast.

113. The Victim picked up the $70, her phone, keys and drink and walked out, leaving Windsor Police Station at around 3pm.

114. The Offender and the Victim walked into the corridor outside Interview Room 1, through the foyer of Windsor Police Station and the front doors to the footpath. Once reaching the footpath, the Offender and the Victim stood talking for approximately three minutes before the Victim walked toward her car.

115. During the meeting on 5 May 2022 the Offender asked for an intimate photograph of the Victim’s “pussy”. This was a reference to her genitalia. He had used it before, at their meeting at Colonial Reserve. At 5:14pm, two hours after leaving Windsor Police Station, the Victim messaged the Offender in relation to the telephone number for a person named Brad, in order to assist in the John investigation. That evening, she messaged the Offender about her wanting to see her boyfriend because she had not seen him in four days and the Victim exchanged messages with the Offender discussing her worth. The Victim messaged the Offender stating that she did not sell herself short. At 7:41pm they engaged in the following exchange of messages (Exhibit E2):

The Offender to the Victim: “Then why are you chasing someone who doesn’t treat you how you should be treated?”

The Victim to Offender: “he gives me money.” “He’s just bad at plans.”

The Offender to the Victim: “I give you money.” “If you’re not number 1, leave.”

The Victim to Offender: “Yeah but I do stuff for that money” and “Yeah I know.”

116. At 7:53pm on the evening following the events at Windsor Police Station, 5 May 2022, the Offender messaged to the Victim a photograph depicting his circumcised and erect penis while he lay on a bed. At the same time, the Victim messaged to the Offender a photograph showing her hip and stomach area and upper thigh including 2 tattoos on her hip. The Offender also told the Victim that he would remain as the Officer in Charge of the investigation concerning John.

117. On 10 May 2022 at 9:51am the Offender sent the Victim a message via Snapchat which read “Where’s my pussy pic you promised me 5 days ago?”. ^[26] The Victim did not respond.

     26. Exhibit E, #86.

118. On 10 May 2022 at 4:17pm the Offender sent the Victim a message via Snapchat which read “… you don’t want the $600 all good you only had to say.” ^[27] The Victim did not respond to this message. Later that day the Offender sent a text message to the Victim asking if she was ok. She replied: “No why”, the Offender asked if she was safe, and the Victim replied, “I mean no. Some loud mouth fucking told my boyfriend and he almost walked away.” ^[28] In her evidence, the Victim said that this was a reference to her boyfriend finding out about her interviewing at strip clubs. ^[29]

     27. Exhibit E, #88.

     28. Exhibit E, #93.

     29. T265.19.

116. On 11 May 2022 at 11:12am the Offender sent a message to the Victim stating that he was disappointed, and he had always been there for her. And a further message at 12:57pm saying sorry for caring about her. At 1:22pm the Offender sent a further Snapchat message which read “Oh come on you promised just a pussy pic for me please.”

117. On 12 May 2022 at 7:55am the Offender sent the Victim a Snapchat message which read:

“[Victim] here is the final offer; $700 for 2 hours ($350p/h) 2:30pm to 4:30pm on Monday 22rd May at Vineyard motel, time and date are not negotiable, much more than I was prepared to pay but you have me intrigued. You will wear a dress and lacy g-string bring another unless you want to go home without undies as I will be keeping it so make sure it’s pulled nice and tight into your pussy, again not negotiable, I’m sure you can buy another pair. You will have the opportunity to shower prior to leaving so you will be nice and clean. If you agree to this you will send me a pic of your naked pussy in good faith of the agreement, again not negotiable, if not I will be in touch in 3 or 4 weeks about other matters. This is the last offer and will expire at midnight tonight so one way or the other this will be the end. Cheers Glen” ^[30]

30. Exhibit E, #112.

121. At 7:56am the Offender sent the Victim a text messages asking her to review Mia’s snapchat when she woke up. ^[31]

     31. Exhibit E, #114.

122. At 9:37am the Offender sent a Snapchat message which read: “Should say 23rd.” ^[32]

     32. Exhibit E, #115.

123. The Victim did not respond to these communications and did not open the Snapchat messages.

124. On 12 May 2022, the Victim sought advice from NG about what to do about the Offender’s conduct. At lunch the Victim asked NG and SB to look at the Snapchat message from the Offender because she was scared. NG “half-swiped” the message which allowed the message to be viewed without the Offender seeing the message had been accessed. After discussing the message, the Victim spoke with BF, her case worker. Ms BF advised her to speak with KR. The Victim returned to Richmond House and spoke with Ms R about the conduct of the Offender. After this the Victim went to NG’s home and spoke with JG, an off-duty police officer, about the conduct of the Offender.

125. On the evening of 12 May 2022, the Victim came into SB’s bedroom and took her phone, saying “I’ve been told to delete these”, and she deleted the screen shot of the Snapchat message from the Offender saved on Ms SB’s phone.

126. Ms JG reported the Offender’s conduct to the Professional Standards Command of the NSW Police Force. An investigation was then commenced in relation to the conduct of the Offender.

127. On 13 May 2022 the Offender deleted all messages between himself and the Victim. The Offender gave evidence that he deleted the messages so that they would not be found by his wife if he didn’t keep his phone on him at all times. ^[33]

     33. T559.41.

128. Detective Acting Inspector McKervey attended the Offender’s home to inform the Offender that a complaint had been made and to seize the Offender’s mobile phone. The Offender voluntarily provided to police his mobile phone. The Offender later voluntarily provided the passcode for the vault located on his mobile phone. The intimate photograph of the Victim was located in the vault folder.

129. The Offender made a dutybook entry concerning 5 May 2022, which he submitted at 2:56pm on 16 May 2022 in which he did not refer to anything of a sexual nature occurring at Windsor Police Station.

130. On 17 May 2022, the Offender created a document on the NSW Police computer system which he saved with the filename “GCL”. The document contained numerous admissions but did not include any reference to any sexual conduct occurring at Colonial Reserve or at Windsor Police Station on 5 May 2022.

131. On 20 May 2022, the Offender was arrested. When the Offender told Detective Sergeant McKervey that he wished to participate in a recorded interview, he also said that he needed access to a document saved on the Police computer system. The Offender having informed Police about that document (referred to in the trial as the GCL document) saved on his personal drive in the Police computer system, the Offender was granted access to the GCL document.

132. The Offender’s conduct, by his dealings with the Victim from 17 February 2022, was in breach of the policy, procedures and guidelines of the NSW Police Force. The Offender at no time informed any superior officer of his conduct with and towards the Victim.

133. The Offender knowingly:

1. failed to follow the recommendation of Detective Sergeant Harvey;

2. failed to comply with the Conflicts of Interest policy and the procedures for managing conflicts of interest;

3. failed to comply with the Code of Conduct and Ethics;

4. failed to comply with the Statement of Values;

5. failed to comply with section 7 of the Police Act;

6. failed to maintain accurate records of his interactions with the Victim;

7. sought to be the officer in charge of the investigation of the complaint concerning John despite attending the Velvet Underground to see the Victim two days earlier;

8. considered that he would not disclose his interactions with the Victim which were in conflict with those policies, procedures and guidelines of the NSW Police Force; and in any statement prepared by him as the officer in charge or give evidence concerning his interactions with the Victim if required to give evidence; and

9. compromised the integrity of the investigation into the Victim’s complaints.

COUNT 1 – FURTHER OBSERVATION OF EVIDENCE OF CONDUCT

134. The Offender conceded in evidence that he did not tell his superior officer, Detective Sergeant Harvey of the sexual content of his communications with the Victim both because he did not want to be removed from the investigation and because he wanted to pursue the sexual favours for money transaction. He was aware that his behaviour was in breach of his obligations as a police officer and would get him into trouble if discovered: cross examination, T585–586.

135. Those transactional conversations between the Offender and the Victim had commenced by about 7 April 2022 when they met at Kable Street. When on 31 March 2022 the Victim told the Offender about her interviewing for work as a strip dancer, the Offender described his physical reaction as “Embarrassingly… I was aroused and I guess excited”: T522.30.

136. By the time of his deciding not to disclose to his superior officer, Detective Sergeant Harvey those sexual communications, after the Easter long weekend, the Offender had attended the Velvet Underground Club in the hope of watching the Victim perform a strip dance, and met with her alone at Kable Street and at Colonial Reserve where, in addition to their phone communications, their discussions continued concerning the Victim providing the Offender with sexual favours for money.

137. Throughout the whole of their engagement, the Offender being a specialist sexual assault detective was possessed of a particular awareness of the vulnerability of persons complaining of sexual assault. His particular awareness of that vulnerability was exposed in two parts of his evidence regarding the Victim:

1. When asked why he did not complete the Victim’s statement in the John allegation with her at their meeting on the 31 March 2022, he answered: “when you’re taking a sexual assault statement, the Victim sets the timetable”, to explain why the meeting ended as soon as the Victim said that she had had enough: T521.30; and

2. He explained that he met the Victim at Kable Street rather than at Windsor Police Station in order to give her papers and ask for her to complete diagrams relevant to the John allegation, because “It’s all about the victim being comfortable. Some complainants aren’t comfortable in police stations… It’s all about making the victim feel…as least stressed as they can possibly be”: T527.25.

138. Specifically, he was aware of the Victim’s vulnerability from their first meeting on 17 February 2022, when she attended Windsor Police Station accompanied by two support workers, that the Victim received supported accommodation whilst she attended university and support with her everyday life including work arrangements. During cross examination he gave the following evidence of his awareness of her vulnerability before the Colonial Reserve meeting (T597.35–50):

“Q. As a result of your communications with the Victim, and the materials that you had, or read, on [the Victim’s boyfriend], you were aware, weren’t you, that [the Victim] was a vulnerable lady?

A. Yes.

Q. She was living in a refuge?

A. Yes.

Q. That she potentially had money issues, or was concerned about money?

A. Yes.

Q. And there were considerable social issues in her past?

A. Yes.

Q. And you knew, because of that, that she was particularly vulnerable?

A. Yes.”

139. Whilst there were inconsistencies in the evidence of the Victim and the Offender in regard to their communications including discussions about transactional sex, the Offender’s evidence of what occurred at Kable Street on about 7 April 2022 included that the Victim showed him a photograph of a lady’s bare breasts with a tattoo between them and that they discussed her contemplating working as an escort including having sex with men of his age, at which point she said that she “probably would” provide that paid service to him. When during examination in chief he was asked to describe what was going through his mind at that time, he answered:

“She’s an attractive young lady. She was going to get into escort work. She was offering to have sex with me for money. I didn’t really think about it”: examination in chief T532.30.

140. He described his thinking in regard to those transactional conversations at the later Colonial Reserve meeting in the following terms (examination in chief, T537.40–50):

“Q. How were you feeling about the offer that you’d discussed with her?

A: I previously said, I’m – I’m an old bloke. She’s a young – an attractive young lady. Offering to have sex with me for money, I was excited.

Q. How do…

A. Excited as in – not physically excited, exited as in wow, this is really going to happen, and you know, this young lady who’s really lovely looking, wants to have sex with me.

Q. How do you feel now about having that conversation with her?

A. How I feel now? Stupid. I’ve thought about – I’ve thought about this every day for the last two years. I’m embarrassed, ashamed.”

141. The Offender was crying as he gave this last answer.

142. The Offender, in other evidence, said that he had “moments of clarity” and doubts about pursuing the wrongful relationship negotiating sexual favours for money but he continued in any event: Offender evidence in chief T540.15–30.

143. What is obviously absent in that evidence and which limits the significance of his expressed, presently realised, shame is that the descriptions of his state of mind do not frankly admit that the Victim did not say that she wanted to have sex with him other than to the effect that she was negotiating with him for payment in return for sex.

144. Exhibits E and E2 contained records of mobile phone contact between the Offender and the Victim. This includes that by the Easter weekend of 2022, the Victim was discussing with him problems with her then boyfriend and problems with her work at a hotel. Whilst it is readily acceptable that it would not be abnormal for a relatively young complainant in any matter under investigation, or a witness, to raise with a trusted police officer, known to them through the course of the investigation, issues of their personal life and even seek from the police officer worldly guidance; the Easter weekend early morning communications about personal trivia in the Victim’s life, of no relevance to the investigation, in particular show that the Offender had allowed their relationship to become too personal and not appropriately arm’s length and professional as was required between him as the investigating detective of the NSW Police Force and her as a complainant in an investigation.

145. The Offender actively pursued the inappropriate transactional relationship with the Victim and planned for it. It was only 2 days after visiting the Velvet Underground Club hoping to see her strip dance (T586.10), that he entered a request in a police computer asking that he be assigned the John investigation. At that time he was of the view that the Victim’s original complaint concerning a second cousin would not proceed as an investigation. He wanted to maintain the John investigation so as to maintain his course of inappropriate conduct with the Victim: cross examination, T588.35–589.10. A few days after his failure to disclose the true nature of the relationship in his discussion with his superior officer Detective Sergeant Harvey on 23 April 2022, he searched the web and located the Vineyard Motel with a plan to take the Victim there for a transactional sexual encounter: cross examination, T595.1–15; Exhibit F.

146. The Offender was serving on a temporary assignment (secondment) to Windsor Police Station Detectives Office. From 30 April 2022 he was to start a second secondment at the Extended Supervision Team and the State Crime Command. This meant he would no longer work from Windsor Police region. He passed onto other police officers his current investigations, but he maintained assignment as investigating officer in charge of the John investigation whilst intending to engage in transactional sex with the Victim and whilst planning for that to take place. He ultimately planned transactional sex to occur on 23 May at the Vineyard Motel (T558; 593.05) in the terms of his Snapchat to the Victim in Exhibit F (note the date was varied to 23 May by text communication Exhibit E2).

147. The Offender was not a junior officer. At the time of the offending, he was aged 55, having been sworn in as a police officer at age 35 on 31 August 2001. At the time of the offending he had served more than 10 years under the State Crime Command, Sex Crimes and Child Abuse Squad to which he was permanently attached as a Detective from 19 September 2011.

COUNT 1 – FURTHER OFFENDER EVIDENCE OF ACKNOWLEDGEMENT OF MISCONDUCT IN PUBLIC OFFICE – SERIOUSNESS OF OFFENDING

148. The Offender was removed from NSW Police Force because of his breaches of the standards of conduct required of serving NSW Police Officers and failure to uphold the values of the Police Force. He acknowledged that his relationship of pursuing transactional sex with the Victim involved conflict of interest, that he did not take the appropriate steps known to him to avoid that conflict of interest, that he did not report the conflict to his superior officer Detective Sergeant Harvey as he was required to do, that he made improper use of his position as a police officer and of the resources of the NSW Police when engaging in transactional sexual intercourse with the Victim in Windsor Police Station. He agreed that he was familiar with the position of trust which he, as an experienced investigating police officer was placed in relation to the Victim through his public office: T569; 572–577. He admitted his awareness of his misconduct at the time of his offending between 17 February and his being informed of the complaint concerning the Victim on 13 May 2022.

149. The NSW Police Force Statement of Values (Exhibit R) states the guiding principles underpinning the conduct of all NSW Police Force employees and how they are judged by the community. With reference to section 7 of the Police Act 1990, the Statement of Values provided that a police officer is to act with integrity, uphold the rule of law, preserve the rights and freedoms of individuals, strive for citizen and police personal satisfaction, make efficient and economical use of public resources and ensure that Police authority is exercised responsibly, among other values. In a document which might be seen as expanding on the Statement of Values, the Code of Conduct and Ethics (Exhibit U) stipulated that employees of the NSW Police Force must behave honestly upholding the values and good reputation of the Police Force whether on or off duty of particular relevance were the following guidelines:

“4. treat everyone with respect, courtesy and fairness;

5. comply with any lawful and reasonable direction given by someone in the NSW Police Force who has authority to give the direction;

…

7. take reasonable steps to avoid conflicts of interest, report those that cannot be avoided, and co-operate in their management; and

…

9. not make improper use of their position or NSW Police Force… resources.”

150. He was aware, as both the Conflict of Interest Policy Statement (Exhibit V) and the Procedures for Managing Conflicts of Interest (Exhibit W) informed, that a failure to act appropriately on a conflict of interest was a breach of the Code of Conduct and Ethics which might result in management or administrative action including possible removal/dismissal from the NSW Police Force.

151. Direction to the jury, in a form agreed to by the parties, on Count 1 – Misconduct in Public Office, included:

“Element 1: The Accused acted to procure the Victim for his own sexual gratification.

The Crown says that Mr Coleman did an act, namely, that he procured the Victim for his own sexual gratification when she was a complainant in a Police investigation conducted by Mr Coleman, who was an officer of the New South Wales Police Force of the rank Detective Senior Constable.

Mr Brook, for Mr Coleman, says that Mr Coleman agrees that as a serving Detective Senior Constable, he held a position of public office. Mr Coleman denies ever having touched or had sexual intercourse with the Victim without her free and voluntary consent. He disputes that he obtained the Victim’s consent by use of his position or authority as a serving police officer. Mr Coleman denies that he misconducted himself in public office so seriously that it merits criminal punishment.

Mr Coleman denied any sexual touching or sexual intercourse with the Victim except for, as he described to you, in Interview Room 1 of Windsor Police Station on 5 May 2022.”

152. The verdict of Guilty to Count 1 is consistent with the jury having been satisfied beyond reasonable doubt that the Offender touched the Victim’s breasts during the Colonial Reserve meeting (Count 5) and that he licked and/or sucked the Victim’s breasts at Windsor Police Station in Interview Room 1 on 5 May 2022 (Count 7) without her consent and with the requisite knowledge that she did not consent. As the Elements Sheet described the Count 1 offence, the jury by its verdict was satisfied beyond reasonable doubt on the whole of the charged and uncharged conduct of pursuing transactional sexual relations and meeting alone and in police vehicles and at Windsor Police Station as well as maintaining a personal unprofessional relationship in conflict of interest of his office, proved on the evidence; that he procured the Victim for his own sexual gratification when she was a complainant in a police investigation conducted by the Offender, and did so wilfully, without reasonable excuse of justification, so seriously having regard to his responsibilities of public office as to warrant criminal punishment.

153. During examination in chief (T555.35–45) his evidence was:

“Q. …what do you say in relation to what you should have done with regard to management of a conflict of interest in that instance?

A. What I should have done is not engaged the behaviour with [the Victim] to start with, and there would no – would not have been a conflict of interest, so outside of that, once it started I should have reported it and removed myself from the situation.

Q: Why didn’t you?

A: Why didn’t I? Because a 19 year old girl was offering to have sex with me for money, and I wanted to.”

154. The Offender conceded in cross examination that he knew on 5 May 2022 that engaging in sexual intercourse, whether it be non-consensual or consensual, in a police station, was misconducting himself as a police officer: T636.25. He said that he had heard of the offence of Misconduct in Public Office but was not aware of its substance and did not consider that he was risking criminal charges: cross examination, T591.1–19. When the Crown asked why not, his answer was (T591.10):

“A. A consensual sexual relationship between two people.

Q. In a police station?

A. In a police station, wrong, but no.”

155. On his commencement of duties at Windsor Criminal Investigations Unit, he received an induction checklist conducted by his superior officer and Team Leader, Detective Sergeant Harvey (as Acting Detective Inspector Harvey then was). She reminded him of the Code of Conduct and Ethics and on 20 January 2022 he promised to abide by those principles: cross examination, T572.30–40. The Offender conceded that as an employee of the NSW Police Force, he had not behaved honestly and had not upheld the values of the NSW Police or the reputation of the Police Force: T572.45–573.2.

**********

Endnotes

Decision last updated: 03 December 2024