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R v Coleman (No. 2)

R v Coleman (No. 2)

Case [2024] NSWDC 576 28 November 2024

Misconduct in Public Office

Sexual Offences

Abuse of Position of Trust

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Coleman (No. 2) [2024] NSWDC 576
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
15 November 2024
28 November 2024
Date of orders: 28 November 2024
Decision date: 28 November 2024
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
(1)   The Offender is convicted and I indicate the following sentences:
(a)   Count 1 – Misconduct in Public Office: 3 years and 2 months imprisonment.
(b) Count 5 – Sexual Touching s 61KC(a) Crimes Act 1900 (NSW): 3 months imprisonment.
(c) Count 7 – Sexual Touching s 61KC(a) Crimes Act 1900 (NSW): 4 months imprisonment.
(2)   The Offender is sentenced to 3 years and 7 months imprisonment consisting of a non-parole period of 2 years and 2 months commencing on 24 May 2024 and expiring on 23 July 2026 with a balance term of 1 year and 5 months expiring on 23 December 2027. The earliest date that the Offender will be eligible to be released on parole is 23 July 2026.
(3)   I direct that the Offender accept the supervision and guidance of Community Corrective Services and obey all reasonable directions of Community Corrective Services including in relation to compliance with any mental health plan provided by his treating medical practitioners and that he remain abstinent from alcohol.
(4)   I recommend that the Offender be provided with mental health care including prescribed medication and that he be referred to a service with expertise in treating police related to PTSD such as at the St John of God Richmond Hospital. I direct that the reports of Dr Nielssen 7 September 2024, Dr McSwiggan 3 November 2024 and Mr Jones 26 October 2022 be provided to Community Corrective Services.
(5)   I recommend that Community Corrective Services assess as soon as is reasonably practicable the Offender for referral to the Special Purpose Unit at Long Bay Prison, and assess as soon as is reasonably practicable the prisoner’s classification and placement so that his conditions of non-association will be reviewed and amended as appropriate.

Catchwords:
CRIME — Common law offence — Misconduct in public office — Abuse of public trust reposed in Detective Senior Constable of NSW Police Force — Abuse of position as an investigating officer of complaints of sexual assault to pursue his own sexual gratification with the victim — 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
SENTENCING — Objective seriousness — Wilful, gross and continuing breach of trust — Corrosive of the community’s respect for and confidence in the prosecutorial process as conducted by police officers — Connivance over the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Coleman (No. 2)

Details

AGLC: R v Coleman (No. 2) [2024] NSWDC 576
Case: [2024] NSWDC 576
Decision Date: 28 November 2024

CaseChat Overview and Summary

The defendant, Coleman, faced trial for misconduct in public office and sexual offences committed during his tenure as a Detective Senior Constable with the NSW Police Force. Coleman abused his position to engage in non-consensual sexual acts with a complainant he was investigating. The case was heard in the Supreme Court of New South Wales. The court was tasked with determining the appropriate sentences for the offences committed, which included misconduct in public office, sexual touching, fellatio, and penile/vaginal sexual intercourse, as well as the offering of money to the victim in exchange for sexual favours. The court had to consider the objective seriousness of the crimes, the subjective factors including Coleman's mental health conditions, and any aggravating or mitigating factors present in the case.

The court found that Coleman's actions constituted a significant breach of public trust, and that his conduct was corrosive of community confidence in the police. The objective seriousness of the offences was high, though slightly reduced due to Coleman's mental health impairments which materially contributed to the commission of the crimes. Coleman's mental health conditions, including anxiety disorder, post-traumatic stress disorder, alcohol use disorder, and probable acquired brain injury, significantly affected his moral culpability. Despite this, Coleman retained the capacity to understand the criminality of his actions. The court considered various aggravating and mitigating factors, including Coleman's admission of guilt and remorse, his long and otherwise unblemished career, and the minimal risk of recidivism. Coleman's prospects for rehabilitation were deemed excellent.

In sentencing, the court imposed a total sentence of 3 years and 7 months imprisonment, with a non-parole period of 2 years and 2 months. The court directed that Coleman receive mental health care, including medication and specialised treatment for his post-traumatic stress disorder. Additionally, the court recommended that Coleman be assessed for placement in the Special Purpose Unit at Long Bay Prison to manage his non-association conditions. The court also mandated compliance with any mental health plans and abstinence from alcohol while under community supervision.

Orders

Orders of the court

(1) The Offender is convicted and I indicate the following sentences:

(a) Count 1 – Misconduct in Public Office: 3 years and 2 months imprisonment.

(b) Count 5 – Sexual Touching s 61KC(a) Crimes Act 1900 (NSW): 3 months imprisonment.

(2) The Offender is sentenced to 3 years and 7 months imprisonment consisting of a non-parole period of 2 years and 2 months commencing on 24 May 2024 and expiring on 23 July 2026 with a balance term of 1 year and 5 months expiring on 23 December 2027. The earliest date that the Offender will be eligible to be released on parole is 23 July 2026.

(3) I direct that the Offender accept the supervision and guidance of Community Corrective Services and obey all reasonable directions of Community Corrective Services including in relation to compliance with any mental health plan provided by his treating medical practitioners and that he remain abstinent from alcohol.

(4) I recommend that the Offender be provided with mental health care including prescribed medication and that he be referred to a service with expertise in treating police related to PTSD such as at the St John of God Richmond Hospital. I direct that the reports of Dr Nielssen 7 September 2024, Dr McSwiggan 3 November 2024 and Mr Jones 26 October 2022 be provided to Community Corrective Services.

(5) I recommend that Community Corrective Services assess as soon as is reasonably practicable the Offender for referral to the Special Purpose Unit at Long Bay Prison, and assess as soon as is reasonably practicable the prisoner’s classification and placement so that his conditions of non-association will be reviewed and amended as appropriate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Coleman (No. 2) [2024] NSWDC 576

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 27 of 27 shown

Macdonald v The King
[2024] NSWCCA 198 Para 5

…records his sexual interest in the Victim to avoid discovery of his misconduct. This was circumstantially indicative of his misconduct: MacDonald v R [2024] NSWCCA 198 [56]–[71] (“ MacDonald ”).…
BAP v The King
[2024] NSWCCA 206 Para 31

…In BAP v R [2024] NSWCCA 206 (“ BAP ”) at [77] and [78] the Court quoted from and applied the relevant principles for the consideration of mental impairment in the assessment of “objective seriousness” and in the assessment of “moral culpability” of the offender. At [77] the Court quoted the remarks of Beech-Jones C…
R v Coleman (No. 1)
[2024] NSWDC 575 Para 3

…The Facts for Sentencing are set out in my judgement delivered on 9 October 2024 ( R v Coleman (No. 1) [2024] NSWDC 575) and are consciously incorporated in my reasons which follow. That judgement was then provided to the parties by email.…
Berejiklian v Independent Commission Against Corruption
[2024] NSWCA 177 Para 12

…the Crown and, specifically, conflict of private interest in public duty in breach of the Ministerial Code, the Court of Appeal in Berejiklian v ICAC [2024] NSWCA 177 (“ Berejiklian v ICAC ”) explained that the obligation of a person in public office, in the avoidance of a conflict of interest, is a duty including…
Astill v The King
[2024] NSWCCA 118 Para 57

…In Astill v R [2024] NSWCCA 118 (“ Astill ”), Bell CJ (Stern JA and Button J agreeing) dismissed an appeal from the sentence of O’Rourke SC DCJ, brought on the basis that the sentence imposed was manifestly excessive. Unlike in this case, there two statutory offences (ss 236Q and 253G of the Crimes (Administration o…
Crane v The King
[2024] NSWCCA 87 Para 114

…n. A substantial period of supervision whilst on parole is required to give practical effect to his excellent prospects for rehabilitation: Crane v R [2024] NSWCCA 87.…
DB v The King
[2023] NSWCCA 323 Para 39

…perception and personal inhibition affecting his judgement making to be causally linked to the commission of the offences in a material way: DB v R [2023] NSWCCA 323 at [52]. The practical application of consideration of the causal role of mental illness in the commission of an offence as explained by McClellan CJ i…
R v Delinicolis and Dellosa
[2021] NSWDC 684

…an (No. 1) [2024] NSWDC 575 R v Delinicolis & Dellosa [2021] NSWDC 684 R v El-Rashid NSWCCA (unreported) 7 April 1995 R v Farrell (District Court of NSW, unreported, 13 February 2013) R v Hildebrand (No. 1) [2019] NSWDC 957 R v Hoyn [2020] NSWDC 834 R v Obeid (No. 12) [2016] NSWSC 1815 R v Purcell [2010] NSWDC 98 T…
Paterson v R
[2021] NSWCCA 273 Para 31

…lpability” of the offender. At [77] the Court quoted the remarks of Beech-Jones CJ at CL (as his Honour then was) at [29] in Paterson v R [2021] NSWCCA 273 (“ Paterson ”) that “objective seriousness” of an offence and the “moral culpability” of the offender are separate but related concepts. The former involves an o…
Droudis v R
[2020] NSWCCA 322 Para 96

…hat is the appropriate approach, and I will not further specify the mitigating effect attributed to the Offender’s cooperation: Droudis v R [2020] NSWCCA 322 at [104].…
R v Hoyn
[2020] NSWDC 834

…013) R v Hildebrand (No. 1) [2019] NSWDC 957 R v Hoyn [2020] NSWDC 834 R v Obeid (No. 12) [2016] NSWSC 1815 R v Purcell [2010] NSWDC 98 Tepania v R [2018] NSWCCA 247 Category: Sentence Parties: Rex (Crown) Glen Coleman (Offender) Representation: Counsel: Ms Kate Nightingale (Crown) Mr Joel Brook (Offender) Solicito…
R v Vaughan Mark Hildebrand (No. 1)
[2019] NSWDC 957

…unreported, 13 February 2013) R v Hildebrand (No. 1) [2019] NSWDC 957 R v Hoyn [2020] NSWDC 834 R v Obeid (No. 12) [2016] NSWSC 1815 R v Purcell [2010] NSWDC 98 Tepania v R [2018] NSWCCA 247 Category: Sentence Parties: Rex (Crown) Glen Coleman (Offender) Representation: Counsel: Ms Kate Nightingale (Crown) Mr Joel…
Tepania v The Queen
[2018] NSWCCA 247 Para 31

…nt of objective seriousness. In Paterson at [30], his Honour quoted with approval what was stated by Johnson J in Tepania v R [2018] NSWCCA 247 at [112], which, in my view, is of assistance here. Johnson J described the matters that can bear upon an assessment of objective seriousness as follows:…
R v Obeid (No 12)
[2016] NSWSC 1815 Para 7

…luable when approaching application of the common law of New South Wales to the Count 1 offence of Misconduct in Public Office. In R v Obeid (No. 12) [2016] NSWSC 1815 (“ Obeid (No. 12) ”) at [4], Beech-Jones J (as his Honour then was) commenced his judgement on sentence by adopting Nettle JA’s (as his Honour then w…
Miller v R
[2015] NSWCCA 86 Para 102

…e custody, within which he may be placed, necessarily means more restrictive conditions when incarcerated than other forms of custody: Miller v R [2015] NSWCCA 86 at [31]. However, wherever he is placed in the State’s prisons, he will continue to suffer the extra hardship to some degree of risk presented by other p…
Aslan v R
[2014] NSWCCA 114 Para 39

…McClellan CJ in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSW CCA 194, was contextualised by Simpson J (as her Honour then was) in Aslan v R [2014] NSWCCA 114 at [33]–[34]. It is to be applied here.…
Hughes v R
[2014] NSWCCA 15

…CA 322 Hili v the Queen (2010) 242 CLR 520 Hughes v R [2014] NSWCCA 15 Jansen v Regina [2013] NSWCCA 301 MacDonald v R [2024] NSWCCA 198 Miller v R [2015] NSWCCA 86 Muldrock v the Queen (2011) 244 CLR 120 Paterson v R [2021] NSWCCA 273 R v Bohannan [2010] EWCA Crim 2261 R v Butler [2021] EWCA Crim 1868 R v Coleman…
Barbaro v The Queen
[2014] HCA 2 Para 54

…field of investigation where there is not a significant cohort of sentences: Obeid (No. 12) at [71] applying Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 253 CLR 58 at square [41]. Beech-Jones J referred to the observation of Campbell J in Jansen v Regina [2013] NSWCCA 301 at [64] to [65] that…
Jansen v R
[2013] NSWCCA 301 Para 54

…Queen; Zirilli v The Queen [2014] HCA 2; (2014) 253 CLR 58 at square [41]. Beech-Jones J referred to the observation of Campbell J in Jansen v Regina [2013] NSWCCA 301 at [64] to [65] that the cohort of such cases is so small as to be not capable of establishing a sentencing pattern to be observed. I have researched…
Blackstock v R
[2013] NSWCCA 172 Para 10

…been placed in a position of trust: R v El-Rashid NSWCCA (unreported) 7 April 1995; BC9504681 per Gleeson CJ (as his honour then was); Blackstock v R [2013] NSWCCA 172.…
Muldrock v The Queen
[2011] HCA 39 Para 109

…ished self-awareness and judgement. These impairments lessen his moral culpability for each of his offences: Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39 at [54]. Consequently, the need to denounce his offending is to some degree reduced but only in proportion to the level of effect of the contribution…
Hili v The Queen
[2010] HCA 45

…CA 277 Droudis v R [2020] NSWCCA 322 Hili v the Queen (2010) 242 CLR 520 Hughes v R [2014] NSWCCA 15 Jansen v Regina [2013] NSWCCA 301 MacDonald v R [2024] NSWCCA 198 Miller v R [2015] NSWCCA 86 Muldrock v the Queen (2011) 244 CLR 120 Paterson v R [2021] NSWCCA 273 R v Bohannan [2010] EWCA Crim 2261 R v Butler [2021]…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194

…77 Blackstock v R [2013] NSWCCA 172 Bugmy v The Queen (2013) 249 CLR 571 Crane v R [2024] NSWCCA 87 DB v R [2023] NSWCCA 323 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 DPP v Marks [2005] VSCA 277 Droudis v R [2020] NSWCCA 322 Hili v the Queen (2010) 242 CLR 520 Hughes v R [2014] NSWCCA 15 Jansen v Regina [2013] NSWCCA…
R v Purcell
[2010] NSWDC 98 Para 59

…In R v Purcell [2010] NSWDC 98, the offender was a police superintendent who deliberately disobeyed a direction from his superior officer concerning what he was permitted to say to members of the press about prior events of sexual assaults in a local area. The superintendent also gave evidence at a Police Integrit…
DPP v Marks
[2005] VSCA 277 Para 7

…adopting Nettle JA’s (as his Honour then was) identification of the object of the offence of wilful misconduct in public office in DPP v Marks [2005] VSCA 277 at [35], as “ensuring a public official does not ‘abuse intentionally the trust reposed in him’ or her.”…
Cheung v The Queen
[2001] HCA 67

…] HCA 55 at 324–325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55–56 [171]–[172] (Callinan J).”…
Neal v The Queen
[1982] HCA 55

…stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324–325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 22A, 3A, 44(2), 44(2A), 47(2)(a), 5... 12 mentions (from Para 20)
Crimes Act 1900 (ACT)
61KC(a) 2 mentions (from Para 2)
Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 57)
Police Act 1990 (NSW)
1 mention (from Para 59)

Medium Neutral Citation:	R v Coleman (No. 2) [2024] NSWDC 576
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 15 November 2024 28 November 2024
Date of orders:	28 November 2024
Decision date:	28 November 2024
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	(1) The Offender is convicted and I indicate the following sentences: (a) Count 1 – Misconduct in Public Office: 3 years and 2 months imprisonment. (b) Count 5 – Sexual Touching s 61KC(a) Crimes Act 1900 (NSW): 3 months imprisonment. (c) Count 7 – Sexual Touching s 61KC(a) Crimes Act 1900 (NSW): 4 months imprisonment. (2) The Offender is sentenced to 3 years and 7 months imprisonment consisting of a non-parole period of 2 years and 2 months commencing on 24 May 2024 and expiring on 23 July 2026 with a balance term of 1 year and 5 months expiring on 23 December 2027. The earliest date that the Offender will be eligible to be released on parole is 23 July 2026. (3) I direct that the Offender accept the supervision and guidance of Community Corrective Services and obey all reasonable directions of Community Corrective Services including in relation to compliance with any mental health plan provided by his treating medical practitioners and that he remain abstinent from alcohol. (4) I recommend that the Offender be provided with mental health care including prescribed medication and that he be referred to a service with expertise in treating police related to PTSD such as at the St John of God Richmond Hospital. I direct that the reports of Dr Nielssen 7 September 2024, Dr McSwiggan 3 November 2024 and Mr Jones 26 October 2022 be provided to Community Corrective Services. (5) I recommend that Community Corrective Services assess as soon as is reasonably practicable the Offender for referral to the Special Purpose Unit at Long Bay Prison, and assess as soon as is reasonably practicable the prisoner’s classification and placement so that his conditions of non-association will be reviewed and amended as appropriate.
Catchwords:	CRIME — Common law offence — Misconduct in public office — Abuse of public trust reposed in Detective Senior Constable of NSW Police Force — Abuse of position as an investigating officer of complaints of sexual assault to pursue his own sexual gratification with the victim — 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 SENTENCING — Objective seriousness — Wilful, gross and continuing breach of trust — Corrosive of the community’s respect for and confidence in the prosecutorial process as conducted by police officers — Connivance over the…