R v Coleman (No. 2)

[2024] NSWDC 576

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 course of more than two months — Planned engagement with the victim to achieve personal sexual gratification and keep it secret from NSW Police Force — Mental impairment contributed to the commission of offences in a material way — Objective seriousness reduced but not markedly so — A seriously grave example of the offence of misconduct in public office

SENTENCING — Subjective considerations — Mental illness — Anxiety Disorder, police-related Post-Traumatic Stress Disorder, Alcohol Use Disorder and Probable Acquired Brain Injury — Frontal lobe injury and brain dysfunction — Judgement making affected by impairments of social perception and personal inhibition — Moral culpability of Misconduct in Public Office significantly reduced — Mental capacity sufficient to understand the criminality of sexual touching without consent

SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victim

SENTENCING — Mitigating factors — Admission and remorse qualified by victim blaming — Almost 21 years of exemplary police service — Minimal risk of recidivism

SENTENCING — Special circumstances — Rehabilitation — Excellent prospects — Hardship in incarceration — Non-association condition — Prior employment as a police officer

Legislation Cited:

Crimes Act 1900 (NSW), s 61KC(a)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 6, 7, 21A, 22A, 44(2), 44(2A), 47(2)(a), 53A, 68(2)

Cases Cited:

Aslan v R [2014] NSWCCA 114

Astill v R [2024] NSWCCA 118

BAP v R [2024] NSWCCA 206

Berejiklian v ICAC [2024] NSWCA 177

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 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 (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

Tepania v R [2018] NSWCCA 247

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, police officers and expert evidence providers.]

Judgment

1. The Offender was convicted of the following offences on 24 May 2024 by a jury of 12.

1. Count 1 Misconduct in Public Office – a common law offence – maximum penalty at large – no standard non-parole period.

2. Count 5 sexually touching another person without consent on or about 20 or 21 April 2022 – s 61KC(a) Crimes Act 1900 (NSW) – maximum penalty imprisonment 5 years – no standard non-parole period.

3. Count 7 sexually touching another person without consent on 5 May 2022 – s 61KC(a) Crimes Act 1900 (NSW) – maximum penalty imprisonment 5 years – no standard non-parole period.

2. The jury returned not guilty verdicts to Counts 2, 3, 4, 6, 8, 9 and 10.

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.

4. The Offender was born in August 1966. He has no antecedent criminal record. He entered custody on 24 May 2024 and has remained in prison. There is no record of misbehaviour whilst in custody.

COUNT 1 MISCONDUCT IN PUBLIC OFFICE

Nature of the offence

5. In the recent decision of the Court of Appeal of England and Wales, R v Butler [2021] EWCA Crim 1868, a police staff investigator (a retired police officer) had been convicted at trial of two offences of misconduct in public office in relation to him engaging in consensual sexual relationships with two vulnerable women who were complainants in respect of criminal allegations which he had been charged with investigating. The Vice President of the Court of Appeal, Criminal Division, Lord Justice Fulford when giving the judgement of the Court concluded at [41] that “Offences of this kind often attract wide publicity, and they entirely overshadow the countless occasions when officers behave with honour and propriety. The consequential harm that is caused to the Police Service is profound and pernicious. Its impact is long-standing, and this offending risks weakening the vital confidence on the part of the public that they can trust, without question, the integrity of those from the Police Service with whom they have dealings.”

6. Whilst acknowledging that there are differences in police powers between jurisdictions, it is in my opinion not different in principle in New South Wales to, as Fulford LJ had remarked in R v Wayne Cousins (unreported), it to be in England and Wales, that “it is expected that the police will act in the public interest. Indeed, the authority of the police is to a truly significant extent dependent on the public’s consent, and the power of officers to detain, arrest and otherwise control important aspects of our lives is only effective because of the critical trust that we repose in [police officers] that they will act lawfully and in the best interests of society. If that is undermined, one of the enduring safeguards of law and order in this country is inevitably jeopardised.”

7. I respectfully consider those observations of Fulford LJ valuable 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 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.”

8. The essence of the Count 1 criminality is that the jury was satisfied beyond reasonable doubt that the Offender wilfully abused the public trust reposed in him as a Detective Senior Constable serving in the NSW Police Force when he used his position as the investigating officer of the Victim’s complaints of sexual abuse and assault to pursue his own sexual gratification with her. He did so with misuse of the NSW Police Force facilities of a police car and Windsor Police Station. He engaged with her personally and sexually including, without her consent whilst knowing she did not consent, his commission of the Count 5 and 7 offences. The Exhibit F Snapchat message from the Offender to the Victim offering to pay her $700, at an hourly rate of $350 per hour, in exchange for sexual activity at the Vineyard Motel, to take place on 23 May 2022, was startlingly plain evidence before the jury of the Offender’s conduct in his pursuit of the Victim for his sexual gratification, the subject of the Count 1 offence.

9. In Obeid (No. 12) Beech-Jones J identified the following propositions in the case law of sentencing for wilful Misconduct in Public Office:

1. firstly, an onerous duty is imposed on public officers and departure from that duty will be treated strictly;

2. secondly, the real damage caused by the offending conduct is to the institutions of government and public confidence in them;

3. thirdly, in such cases the necessity for the sentence to reflect considerations of general deterrence and denunciation are of high significance amongst other sentencing considerations; and

4. fourthly, the prior good character of the offender is afforded less weight in the sentencing process then it would be for other offences.

10. The fourth proposition arrives because crimes involving a serious breach of trust are often only able to be committed because of the previous good character of the person who has 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.

11. The offence of Misconduct in Public Office is not primarily concerned with abuse of position for personal gain; but rather, as a common law offence, it gives expression to principles attributed to Lord Mansfield: that a person accepting an office of trust concerning the public is answerable criminally to the Crown for misbehaviour in the office; and that, whereas breach of trust, and the conduct the subject of the offence in a matter concerning the public is as between individuals only actionable, between the Crown and the Offender, it is indictable.

12. Recently, and in the context of the different public office of a Minister of 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 an obligation to act according to good conscience and un-influenced by other considerations including personal benefit. “Most relevantly, whether there is a conflict between a Minister’s public duty and private interest depends solely on whether that interest (being the expectation of a private benefit) could objectively have the potential to influence the performance of [the Minister’s] public duty” (at [156]). It is not essential to the offence of Misconduct in Public Office that the Offender has, as in fact did occur in this case, received the personal benefit they pursued.

13. In the present context of the underlying circumstance of the Offender being a Police officer investigating potential prosecution of a person, his interest in procuring sexual gratification from the Victim objectively, had the potential to influence his performance of his public duty of impartiality in the investigation toward gathering of evidence which might become part of a criminal proceeding against the other person, arising with respect to the making of a decision or taking of any action: applying Berejiklian v ICAC (at [159]).

14. The Offender conceded during cross examination that he did not assign to another Police officer the John investigation, when he knew that in accordance with the NSW Police Force Conflict of Interest Guidelines he was required to do so. His desire to engage in sexual conduct with the Victim, to continue negotiating to pay her for lap dances and other sexual conduct drove his course of misconduct. His awareness of the wrongfulness and impropriety of his conduct caused him to not enter in the police computer system COPS or in Police Duty Books that conduct and relationship with the Victim. He realised that there was a possibility of him being required to give evidence as the investigating officer but did not think it likely that the John prosecution would reach a criminal court trial. He considered, in those circumstances, that his acting contrary to the Code of Conduct would not come to being exposed because he was unlikely to be required to give evidence in a proceeding. He did not think that his conduct was criminal: T588.20–591.19.

15. The public trust in the integrity of the investigation and participation in potential prosecution of the Victim’s allegation against John would reasonably be viewed by the public as at risk, because he was not objectively free from that wrongful influence. The jury were directed and the Count 1 verdict is consistent with the jury finding it to be established beyond reasonable doubt both that the Offender pursued and in fact procured the Victim for his own sexual gratification and that he did so in connection with the responsibilities of his public office (Elements 1 and 2).

16. As to Element 3, the jury was instructed that the Offender was not divested of the obligations of his public office when off duty and could be liable for misconduct engaged in at such times if it bore a relationship to his official position. Exhibit V – the NSW Police Force Conflicts of Interest Policy Statement informed the jury that: “A conflict of interest occurs when the private interests of a NSW Police Force employee interferes with or influences, or appears to interfere with or influence, their official duties and responsibilities or where an employee uses their official status to influence private interests”. Exhibits V and W informed the jury that the NSW Police Force Conflicts of Interest Policy and Procedures for Managing Conflicts of Interest applied whenever the Offender was engaged in activity on behalf of the NSW Police Force, whether or not on duty and included when engaged in his private personal and social life.

17. The Offender’s evidence effectively admitted of Element 4 in that he freely admitted that he wilfully misconducted himself, consciously pursuing sexual engagement with the Victim in breach of the Police guidelines. As to Element 5, the Offender’s evidence did not claim any reasonable excuse or justification for his actions. Again, he knew that he was acting in breach of Police guidelines. His rationalisation that the Victim, a 19-year-old adult, wanted to have sexual engagement with him; did not meet the reality of the situation, it being that even on the Offender’s version of the communications and engagements between himself and the Victim, she never communicated contemplation of sexual engagement which was not to be paid for by him.

18. As to Element 6, the verdict of guilty to Count 1 carries the jury’s determination that the misconduct satisfied the high threshold at which criminal sanction is deserved. The jury was given the following warning:

“I warn you that the threshold of satisfaction beyond reasonable doubt of this sixth element of seriousness meriting criminal punishment is a high one and is to be clearly distinguished from civil consequences for misconduct such as termination of his employment as a police officer, other disciplinary action within the police force, civil remedies, and any consequence other than criminal sanction. You could not convict Mr Coleman unless the Crown has satisfied you beyond reasonable doubt that his misconduct was sufficiently serious in nature to be a departure from the standards and responsibilities of his public office of police officer in the context of the public objects which a police officer's responsibilities serve. You could not convict Mr Coleman unless you are satisfied beyond reasonable doubt that his conduct was so far below acceptable standards of his public office of police officer as to amount to an abuse of the public trust in his public office of police officer. When considering whether or not you are satisfied beyond reasonable doubt as to this sixth element of the seriousness of misconduct, you must consider the seriousness of the likely consequences of Mr Coleman's breach of the standards and responsibilities of his public office of police officer.”

19. For the purposes of sentencing, the evaluative assessment of the degree of culpability of the Offender’s conduct is not solely for the sentencing judge in that and to the extent that recognition of the jury’s factual finding of that degree of seriousness as an element constituting the offence is required. In Obeid (No. 12), Beech-Jones J at [53] said that this Element of the crime is often described as a “classic jury question” in that it is a question the answer to which required the jury to apply a normative assessment undertaken by reference to community standards. The jury’s determination does not foreclose adoption of any particular sentencing option; however, his Honour observed it to be a significant matter for consideration in sentencing of offenders. Of course, the jury did not receive evidence of the Offender’s mental impairments.

20. The provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”) apply to common law offences as well as to statutory offences. In Obeid (No 12), His Honour observed that five aspects of the CSP Act are of particular relevance, namely:

1. the purposes of sentencing: s 3A;

2. the prohibition on a court sentencing an offender to imprisonment unless, having considered all available opportunities for sentence, it is satisfied that no other form of punishment is appropriate: s 5(1);

3. the power, in some circumstances, to impose home detention or an Intensive Correction Order on a person sentenced to a term of imprisonment: ss 6 and 7;

4. the specification of aggravating, mitigating and other factors in sentencing: s 21A; and

1. the power of the court to alter the minimum ratio between a non-parole period and the balance of a sentence if “special circumstances” are found: s 44(2).

21. Having reviewed case law including sentences imposed upon police officers for criminal misconduct in public office, at [79] his Honour observed that the cases illustrate the variety of public officials and therefore the public offices they held when wilfully misconducting themselves and the variety of circumstances that can constitute the crime. His Honour observed the inexhaustive list of matters for consideration in the assessment of the level of criminality involved illustrated in those cases to include:

1. the period of the offending;

2. the planning involved;

3. the motivation of the offender;

4. the direct loss occasioned;

5. the benefit to the offender sought and derived.

22. His Honour identified the essence of the offence as the breach of trust in the form of a deliberate or reckless breach of duty by a public official.

Objective Seriousness

23. In the assessment of the seriousness of the offending here, I observe:

1. The Offender was a senior police officer in the role of investigating an alleged crime in the process toward whether or not a prosecution of another person would follow. In the course of that role, he took the opportunity presented by the relationship of complainant to investigating officer in the special context of complainant of a sexual assault allegation with a specialist sexual assault officer such that:

1. he created the potential for and acted in a way which could cause justifiable public perception of lack of impartiality in the investigation toward gathering of evidence and in decision-making which might become part of the criminal prosecution against another person (John);

2. he specifically failed to uphold the rule of law by his Count 5 and 7 offending;

3. he failed to preserve the rights and freedoms of the Victim as a complainant alleging sexual assault by John and indeed the rights of John;

4. he breached his obligation by improper use of his position and of police resources;

5. he breached the guidelines for avoiding conflict of interest;

6. he failed to cooperate with and comply with the direction of his superior officer Detective Sergeant Harvey;

7. he failed to act with the integrity required of his public office;

All of the above conduct was wilful and continued whilst he was aware of his non-compliance with Police guidelines.

2. The offending was not spontaneous. It occurred over a period from 31 March 2022 to 13 May 2022 in his dealings with the Victim and involved the Count 5 and Count 7 offending.

3. The offending involved a course of planning. Most obviously, only two days after visiting the Velvet Underground Club hoping to see the Victim strip dance, the Offender entered into the Police computer system the request that he be assigned the John investigation, after he was to be assigned to work away from Windsor police region and therefore, (otherwise) away from the Victim and the John investigation. He did not pass the John investigation on to other police investigators as he did his other work and as was appropriate to do. Only a few days after his failure to disclose his sexual interest in the Victim to Detective Sergeant Harvey during their discussion of potential conflict of interest arising from the Victim’s telephone contacts with him, he searched the web and located the Vineyard Motel in the construction of his plan which was ultimately exposed in the Exhibit F Snapchat, to pay the Victim for two hours of sexual engagement there. His demands of the Victim for sexual engagement in the Exhibit F Snapchat startlingly characterise the calibre of the sexual engagement he pursued with the Victim.

4. His key motivation of personal sexual gratification was achieved in the sexual touching offending the subject of Counts 5 and 7 in that the Victim was in the company of the Offender on those occasions because she was the complainant making an allegation being investigated by him in the course of his duties as a police officer and also achieved in the sexual intercourse (the subject of Counts 8 and 9) when the Victim was in the company of the Offender for the purpose of making her police statement at Windsor Police Station in Interview Room 1 and in the circumstances of $70 being placed by him on the interview room table.

5. Throughout his course of misconduct, the Offender was aware of the ready availability of compliance with the conflicts of interest guideline pathways but consciously chose to not report or enter in Police Force Duty 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”).

6. Throughout his course of misconduct, the Offender was aware that the Victim was a vulnerable 19-year-old person, living in supported accommodation and with life management support of support workers.

7. In my opinion, a very significant matter is that a complainant making a sexual assault allegation, according to the normative community assessment of the role and duties of police officers, is expected to find safety from sexual exploitation when in the company of police and more so when located in police facilities including a police car and most obviously, a police station. In my assessment, the public trust in the impartial investigation of crime by an investigating police officer and, separately, in the safety and protection from sexual exploitation of a complainant when in the company of an investigating police officer are most directly damaged by the Offender’s conduct. Put bluntly, a reasonable member of the community would expect to trust that such a complainant in the company of such a police officer when at police premises or within a police car, would be safe and protected from sexual approaches. The offending conduct would beg the question in the mind of a reasonable member of the community as to where that complainant is entitled to feel safe.

8. In my assessment the Offender’s actions involved a wilful, gross and continuing breach of trust, damaging in immediate terms to the Victim. In broader terms, his offending was a violation of public trust and corrosive of the community’s respect for and confidence in the prosecutorial process as conducted by police officers.

24. The verdicts of guilty in relation to Counts 5 and 7 require separate consideration for sentence. I must guard against a risk of double punishment when sentencing for the Count 1 offending, bearing in mind that those offences form part of the misconduct.

25. The Crown submits that the Count 1 offending falls at the “upper end of the range of objective seriousness for offences of this kind”: MFI 1 [13]. The Offender, with reference to Obeid (No. 12) argues that comparison with misconduct by a Minister of Parliament places the subject offending as “not the most serious example for an offence of this type”: MFI 2 [16]. See most recently MacDonald.

26. The Offender concedes that the duties and obligations of serving police officers are onerous and points to the Offender’s acceptance of this in his evidence, that police officers owe an obligation to remain impartial and to disclose any conflicts of interest that may come to their attention in the course of their duties, that departures from duties of a police officer’s public office “should be dealt with strictly” and that the Offender failed to disclose, as he should have done, his improper engagement with the Victim and should have ceased investigating her complaints “as soon as he identified the conflict of interest.”

27. The Offender also argues at MFI 2 [16(a)(iii)] that the Court “would find that [the Victim] actively engaged with negotiations for sexual favours in return for money with the [Offender], including inviting him to the Velvet Underground so she could dance for him in return for money.” It is not a fact determined in my judgement on Facts for Sentencing (R v Coleman (No. 1) [2024] NSWDC 575) that the Victim’s communications with the Offender concerning her interview for strip dancing at that club, included that she would dance for him in return for money (MFI 2 submissions preceded that judgement). I ignore that part of the factual submission.

28. For the assessment of the objective seriousness of the Count 1 offending, the fact that the Victim did engage with the Offender in negotiations, the content of which concerned sexual favours in return for his paying her money; does not, in my opinion, markedly reduce the objective seriousness of the offending. As an experienced Detective Senior Constable, his duty of impartiality was paramount. The public trust in the investigation and prosecution of crime will be damaged in any case where the investigating police officer permits the erosion of their impartiality in the performance of their duties.

29. In Defence final written submissions (22/11/2024 – MFI 2 at [4]–[9]) the Offender refers again to the Victim’s participation in communications with the Offender the content of which concerned negotiations in relation to the exchange of sexual services in return for cash and contact with the Offender for personal matters unrelated to investigation of her complaints about John as well as to “gap[s]” in their communications and attendances of that nature during which their communications did relate to the John investigation. Finally, the Offender refers to his having stopped contacting the Victim “independently after she stopped responding to him and didn’t reply to” the Exhibit F Snapchat in which he offered her $350 per hour for 2 hours of sexual engagement at the motel and described to her what underwear she should be wearing etc. The Offender says that the history of their communication, being absent of threats from the Offender and showing the Victims participation, when taken into account, lessens the effect of a power imbalance between them. In my opinion, the Count 1 misconduct occurred over a substantial period and is easily differentiated from an instance of provocation preceding an immediate reaction. The Offender did not put the submission in those terms; but to my thinking, the planning and persistence of the Offender’s pursuit over the period commencing 31 March 2022 up to 13 May 2022, speaks for itself. The power imbalance between the Offender as Detective Senior Constable, Crime Sexual Assault and Child Abuse Squad in his dealings with the Victim as a complainant of sexual assault, when he was aware that she was a vulnerable person, is an obvious one.

30. I turn to evidence of the Offender’s mental health prior to the offending, at the time of the offending and to the present.

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 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 objective assessment of the seriousness of the offending which includes consideration of matters causally related to it. The latter is concerned with the offender's moral blameworthiness for the offence, which assessment can involve a consideration of a wider set of subjective factors affecting the offender than the assessment of his/her mental impairment in the assessment 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:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional 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 at 55–56 [171]–[172] (Callinan J).”

32. Unlike in BAP, there is expert opinion evidence that at the time of the offending the Offender’s impaired judgement and disinhibition consequent of his then mental health conditions materially contributed to his commission of the offences. Dr Nielssen, forensic psychiatrist and Dr McSwiggan, neuropsychologist, diagnosed the Offender to suffer the mental health consequences of long-term alcohol abuse associated with his workplace trauma. Mr Jones, clinical and forensic treating psychologist, assessed his PTSD to be in the “severe range”. Dr Nielssen diagnosed him to suffer: Anxiety Disorder, PTSD, Alcohol Use Disorder and Probable Acquired Brain Injury. Dr McSwiggan diagnosed Severe Alcohol Use Disorder, Possible Substance Induced Mild Neurocognitive Disorder (alcohol) but, disagreed with Dr Nielssen in that, in her opinion, the behavioural effects of the long previously acquired probable brain injuries had most likely resolved by the time of the offending. Dr Nielssen and Dr McSwiggan were briefed with the Facts for Sentencing and gave oral evidence. During cross-examination Dr McSwiggan and Dr Nielssen were unmoved from their assessment of the nexus between the Offender’s mental health condition and the offending. Dr Nielssen expressed this in his report of 7 February 2024 at page 9, in the following terms:

“With regards a nexus between Mr Coleman’s mental health condition and the charges, there is no obvious link between the effect of his anxiety disorder and PTSD and his reported behaviour. However, the impairment of social judgement and impulse control arising from an acquired brain injury affecting the frontal lobes of the brain would help to explain Mr Coleman’s lapse in judgement in his attempting to form a relationship with [the Victim], and also the pattern of his communications with her. The effect of long term alcohol abuse, on a background of traumatic brain injuries in early adult life, are likely to have contributed to his misconduct.”

33. It is important to note that Dr McSwiggan’s conclusion that effects of frontal lobe brain dysfunction materially contributed to the offending is consistent as to that effect, with Dr Nielssen’s opinion. The difference between them is only as to the source of that mental dysfunction. In their oral evidence, they each explained their opinion of the material contribution was based in the constellation of history including alcohol abuse and the Offender’s presentation displayed in interview.

34. Dr McSwiggan was unshaken during cross-examination from her opinion expressed at paragraph 35 of her report dated 3 November 2024, where she stated:

“I would agree with clinical opinion of Dr Nielssen that Mr Coleman had the pattern of mild social cognitive decline commonly encountered in mild executive dysfunction. The constellation of jocularity, difficult to interrupt, poor self-awareness, overinclusive speech, lack of impression management, mildly disinhibited, candidness and bluntness that is a change according to a close informant (wife). For these reasons, I would agree with (sic) opinion of Dr Nielssen and make a finding of Possible Substance Induced Mild Neurocognitive Disorder.”

35. In oral evidence Dr McSwiggan explained that “a pattern of mild social cognitive decline commonly encountered in mild executive dysfunction”, was a reference to the Offender’s domain of cognition involving his self-perception, self-awareness and how he conducted himself, his ability to inhibit behaviours, “the way you reason and appreciate the social circumstances that you find yourself in within context” (15/11/2024 T12.15)… “whether it be work context, social with friends context,… that people are able to manage their different behaviours dependent on context” (15/11/2024 T13.12–14). Whilst Dr Nielssen disagreed with Dr McSwiggan’s use of the term “mild” because frontal lobe injury has global effect on social impairment (15/11/2024 T40.45) and he maintained his opinion that the serious sporting concussions suffered by the Offender almost certainly lead to permanent underlying neurological injury (15/11/2024 T41.25) which does not go away (15/11/2024 T40.1); he observed that Dr McSwiggan made the same observations as had he himself of the Offender’s impairment including diminished self-awareness diminishing his ability to understand how other people would view him (15/11/2024 T42.15).

36. Dr Nielssen, in oral evidence, maintained and explained his opinion that the constellation of behaviour on the background of traumatic brain injury and brain trauma caused by excessive alcohol consumption, over an extended period of many years, probably resulted in the Offender’s deficits of inhibition and judgement contributing to all three offences (Counts 1, 5 and 7): 15/11/2024 T42.10. Dr Nielssen and Dr McSwiggan gave like opinion that the course of the Offender’s bad decisions in the course of his offending behaviour of misconduct in public office over a period of two months or so, was contributed to by his diminished self-awareness, inhibition to control impulses which dysfunctions were caused by his frontal lobe impairment: 15/11/2024 T42.10–49 (Dr Nielssen); 15/11/2024 T18.1–11 (Dr McSwiggan).

37. The causal contribution of the Offender’s frontal lobe damage, whilst assessed by Dr Nielssen and Dr McSwiggan approximately two years after the offending, in their opinions was probably present and contributing to the offending because of the long-term gradual onset of the condition is such that it was unlikely to have appeared between the offending and their interviews with the Offender. Each of them during cross-examination (they did not give simultaneous evidence) denied that they had only relied for their opinions, on the Offender’s wife’s report to Dr Nielssen of his excessive, long-term alcohol abuse. Each of them was adamant that the Offender’s presentation during interview was typically that of frontal lobe damage particularly in that he was unrestrained, uninhibited, garrulous in his responses given the context of his imprisonment and his awareness of their function being to provide sentencing report evidence. Dr McSwiggan particularly spoke of the abnormality of the Offender’s lack of impression management, downplaying any relationship with his alcohol abuse to the offending, overfamiliarity with the interviewer and as she described his presentation (15/11/2024 T26. 20–46):

“He wasn’t concerned about being in segregation as a – a police officer who has found himself in custody. I found his adjustment to segregation, which is an incredibly onerous position to be in when you’re locked in 23 hours a day, he was quite happy about it and said he'd been – there was a jocularity and most people I’ve seen over my years in segregation will have a massive decline in mood because of the overwhelming nature of being locked in for 23 hours a day. As a person who used to be someone who managed or enforced the law and now, he’s found himself in a position where – his physical safety he wasn’t concerned about, wasn’t really concerned about the family or the financial impact of what’s happened because of this… Most people have – who are going through court tend to have concerns about their finances, they worry about their effect of their children, on their partners, on their reputation, physical safety in custody. He had no concerns that he expressed.”

38. Dr Nielssen and Dr McSwiggan were independently of the opinion that the effect of the Offender’s frontal lobe damage related mental health impairment did not prevent him from appreciating with clarity the wrongfulness of his conduct. He had that intellectual understanding and could look at the consequences of his misconduct but to a degree lacked self-management and restraint reasoning processes, to achieve best outcomes (avoidance of the behaviour) were impaired: 15/11/2024 T13.42–14.20, 17.35, 18.1–11, 26.5 (Dr McSwiggan); 15/11/2024 T43. 10–24, 51.5–39 (Dr Nielssen).

39. I conclude that the opinions of Dr Nielssen and of Dr McSwiggan describe the contribution of the Offender’s impairments of social 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 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.

40. The Crown submits “…that regardless of whether the Court determines that it is satisfied on the balance of probabilities that the Offender suffered at the time of the offences frontal lobe deficits, the condition does not reduce the Offender's moral culpability. Both Dr McSwiggan and Dr Nielssen agreed in cross-examination that the Offender was aware of the moral wrongness of his conduct. Further, the Offender himself admitted that he knew at the time of his conduct it was wrong and inappropriate.” (Crown final written submissions 22/11/2024 – MFI 1 at [3])… and that when Mr Jones assessed the Offender 5 months after the offending, he reported (Crown final written submissions 2/11/2024 at [6]):

“During the assessment, Mr Coleman appeared to present a flat affect with a low mood and responded to all aspects of the interview with a logical thought-form. In response to the assessment enquiries, Mr Coleman communicated with a normal rate, tone and volume. No evidence of sensory, perceptual and more significant cognitive impairment was noted/reported. His estimated level of cognitive functioning was felt to be in the average range with a good level of insight and judgement.”

41. Neither Dr Nielssen nor Dr McSwiggan were briefed with the report of Mr Jones. Mr Jones was not briefed with the Facts for Sentencing. Doctors Nielssen and McSwiggan were briefed with the Facts for Sentencing. Mr Jones was not called to give oral evidence. There is no evidence of what Mr Jones would think, had he the opportunity to consider the expert reports and/or evidence of Dr Nielssen and Dr McSwiggan. Each of Dr Nielssen and Dr McSwiggan are by education, training and experience, of a higher level of expertise than Mr Jones. Specifically, each of Dr Nielssen and Dr McSwiggan has deep personal experience with the assessment of persons who have suffered long-term alcohol abuse related frontal lobe damage. The effect of the above passage quoted from Mr Jone’s report was summarised in a question put by the Crown to Dr Nielssen, who responded that it did not cause him to vary his opinion and that “I would say that Mr Jones probably missed it”, referring to significant frontal lobe damage driven behaviour including diminished insight and judgement (15/11/2024, T50.25–39).

42. The passage quoted from Mr Jones’ report, is of little assistance in those circumstances of his not being briefed with the Facts for Sentencing and because his opinion, to the extent that it was tested in the sentencing hearing, was not shown to be a basis for qualifying the opinions of the Dr Nielssen and Dr McSwiggan.

43. In my application of the instinctive synthesis of sentencing, I weigh the presentation of the Offender as he gave his evidence at trial with the above referred to observations and opinions of Dr Nielssen and Dr McSwiggan. Just as they described his frontal lobe condition and degree of impairment as discrete in that he could present as a person of normal intelligence and intellectual function, he displayed no disability in the communication during examination in chief and cross-examination. He was able to understand questions and provide reasoned and logical answers. I would understand the expert opinion to mean that his generally displayed willingness to admit the wrongfulness of his conduct was in part a presentation of his discrete mental impairment.

44. The Offender readily admitted that he chose to pursue the wrongful relationship of negotiating sexual favours for money whilst knowing that he was doing so in breach of the Code of Ethics and the Conflict of Interest guidelines, the consequences of which could be loss of his employment and discharge from the NSW Police Force. His expressed only limit on that was that he did not at the time of the offending understand that he was committing a criminal offence. His claimed perspective was that he was pursuing consensual sexual engagement with a consenting adult female.

45. Accepting the expert opinion evidence, and there is no evidence to the contrary, I conclude that both at the time of offending and as displayed in that evidence, there was a level of disinhibition which is a sort of impulsiveness. In my view, that contribution of his mental health to the commission of each offence in a material way, is properly to be assessed with what I observe to be the connivance he employed over the course of more than two months of planned engagement with the Victim as he conspired to achieve his personal sexual gratification and keep it secret from NSW Police Force. As he conceded in evidence, he was always conscious that he should stop that wrongful engagement with the Victim and, in accordance with NSW Police guidelines, it was always available to him to pass the John investigation (which involved the Victim as complainant) to another police officer. Dr McSwiggan’s following evidence is consistent with my conclusion (15/11/2024 T18.01–12):

“Q. Would you agree that the offender made a series, over the course of about two months, of very bad decisions?

A. Yes.

Q. Would you agree also that the majority of those decisions were not impulsive?

A. I would have to look back at most of them, but I would say that it – again, it was difficult to know between when the idea came and when the decision came, but I would consider that there was a level of disinhibition which is a sort of a feature of being impulsive, because you're not stopping it.”

46. The causal effect of the Offender’s mental impairment has to be assessed by application of the expert opinion to the facts of the decision making and actions taken by the Offender across the course of his offending. He was wilful and conniving. In my view the Offender’s mental impairment contributed to the commission of each offence in a material way such that the objective assessment of the seriousness of each offence is reduced but not greatly so.

47. In my assessment, the Offender’s Count 1 offending is a seriously grave example of the offence of Misconduct in Public Office.

COUNT 5 SEXUALLY TOUCHING ANOTHER PERSON WITHOUT CONSENT

Objective Seriousness

48. This offending involved the Offender making skin to skin contact with the Victim’s breasts in circumstances of her having just told him that she wanted to leave the police car in order to see her boyfriend and him having asked to see her breasts, in response to which request she lifted her top. The Crown submits that the offending falls “towards the middle of the range” (MFI 1) but then in Crown Supplementary Submissions, that the offending footfalls “towards the upper end of the middle range” (MFI 1) of objective seriousness for offending of this type. The Defence submits that the offending falls “towards the lower end of the range” (MFI 2) of objective seriousness for offending of this type.

49. The surrounding circumstances included the Victim and the Offender having engaged in negotiation for the Victim to provide a lap dance in exchange for payment, in the future, the touching was of short duration and the evidence does not suggest any force or violence involved. No injury was suffered by the Victim. The age difference was significant (Offender 55 years/Victim 19 years) and the circumstances of his being the investigating police officer and her being a vulnerable person in association with him through her making complaint of sexual assault by John, portrays a significant power imbalance. For the reasons earlier stated, in my opinion, the Victim’s participation in negotiation toward transactional sexual engagement, does not reduce the objective seriousness of the offending because the Offender was a police officer. In my view, the overlap between the Count 5 conduct and the Count 1 Conduct, is not reason to isolate the Count 5 offending from the circumstances of power imbalance.

50. In my opinion the Count 5 offending falls below the middle range for offending of this type.

COUNT 7 SEXUALLY TOUCHING ANOTHER PERSON WITHOUT CONSENT

Objective Seriousness

51. The Crown submits that the Count 7 offending falls in the same range as the Count 5 offending of “towards the middle range” (MFI 1). The Offender submits that the offending falls “towards the lower end of the range… but slightly higher than the conduct the subject of Count 5” (MFI 2). In my view the Offender’s concession that the Count 7 offending is to be assessed as of slightly greater gravity of seriousness than the Count 5 offending is properly made. Whilst the circumstances at Windsor Police Station involved the same imbalance of authority, unlike their meeting at Colonial Reserve, on the occasion of their meeting in Interview Room 1, Windsor Police Station on 5 May 2022, they did engage in sexual intercourse which the jury determined not to be either or both of without consent and/or whilst the Offender was possessed of the requisite knowledge that the Victim did not consent. In other words, there was sexual engagement on that occasion which was not of criminal character: namely, once one excludes consideration of the Count 1 offence of Misconduct in Public Office. Further, the physical touching was of a more serious physical character because the Offender sucked the Victim’s breast. Again, the duration of the offending was short, lasting only a couple of seconds.

52. In my opinion, the Count 7 offending falls below the middle range for offending of this type but was of more gravity than the Count 5 offending.

ANALOGOUS STATUTORY REFERENCE POINT AND COMPARABLE CASES – COUNT 1

53. As Misconduct in Public Office is a common law offence, there is no specified maximum penalty. Accordingly, there is no yardstick for maximum sentencing indicated by the Parliament. When sentencing for this common-law offence, the sentencing discretion remains unfettered. The parties have been unable to identify a strongly analogous statutory offence and my research has come to the same result.

54. Consideration of sentences for the offence of Misconduct in Public Office, in other cases both in terms of comparing sentencing outcomes and discerning the unifying principles which those sentences reveal, unfortunately lands in a 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 the cohort of such cases is so small as to be not capable of establishing a sentencing pattern to be observed. I have researched all of the possibly comparable NSW cases referred to in the party’s written submissions and discovered in my research.

55. In Obeid (No. 12) Beech-Jones J found that offences in Part 4A of the Crimes Act 1900 provided a relevant statutory analogue: at [66]–[70]. The maximum penalty for that relevant statutory analogue was 7 years imprisonment. There is no such statutory analogue available for the present offending. Mr Obeid held the public office of Minister in the Parliament in regard to which I accept the Offender’s submission that there is some distinction of the nature of public trust involved, compared to that associated with the public office of a Detective Senior Constable, investigating officer of NSW Police Force. His Honour assessed Mr Obeid’s misconduct to be in the middle to lower end of the range of corrupt conduct by a parliamentarian: at [89]. After taking into account Mr Obeid’s subjective considerations, his Honour included in his conclusion that Mr Obeid’s misconduct constituting the crime “… even though it was effectively constituted by a single telephone call,… was a very serious example of that offence given the nature of the duty owed by him as a parliamentarian and the extent of his departure from that duty”: at [134]. Mr Obeid was sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years.

56. In MacDonald, Mr MacDonald’s misconduct in his public office of Minister for Mineral Resources and in the exercise of his powers to grant an exploration license for mining involved him avoiding a tender process, motivated by his improper purpose of benefiting another person, Mr Maitland. Mr MacDonald received no personal benefit from the misconduct which was sustained over a period of five months and resulted in significant commercial damage to the community: [163]–[173]. Throughout the offending, there was readily available to him, advice from independent persons which could usefully have informed the exercise of power: at [67]. The Court dismissed an appeal against the sentence imposed at first instance of imprisonment for 8 years with a non-parole period of 4 years and 6 months.

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 of Sentences) Act 1999 (NSW)) were sufficiently analogous to the Misconduct in Public Office offending as to provide a useful reference point for the appropriate penalty. The subject offending involved a very senior Correctional Officer exploiting the vulnerability of female victims to his sexual assaults whilst they were under his absolute direction and control. The Court approved of the approach to sentence adopted by O’Rourke SC DCJ which recognised that for offences of Misconduct in Public Office the sentence must reflect the strong need to deter those in public office from contemplating actions that damage or undermine government institutions and denounce those who are convicted of doing so (at [84]). The Court (at [86]) quoted with approval from R v Bohannan [2010] EWCA Crim 2261 at [64] that in cases involving the common law offence of Misconduct in Public Office: “…punishment and deterrence are always important elements in these cases: not only must police officers be deterred from misconduct, but also the public must see that condign punishment will be visited on police officers who betray the trust reposed in them and do not live up to the high standards of the police service.”

58. For the variety of Misconduct in Public Office offences, after discounts on account of pleas of guilty of 10% and 25% and according to the trial judge’s assessment of the objective seriousness, which she assessed at the lowest being below mid-range and the highest at extremely serious; the indicative sentence varied significantly according to the character of sexual assaults. The indicative sentences ranged between 1 year and 4 months and 2 years and 6 months. Those indicative sentences were not challenged on appeal. Whilst I have referred to them in those broad and generalised terms, I have considered each of the offences and sentences, having acquired the transcript of her Honour’s judgement of 31 March 2023. I note that the indicative sentence for Count 43, after 10% discount for plea of guilty, was 2 years and 6 months. The Misconduct in Public Office for that Count occurred over a period of 7 months and involved the offender engaging in an inappropriate sexual relationship with the inmate and a failure to declare that relationship whilst introducing contraband items into the prison and giving banned items to inmates as well as giving favours to the inmate including a new MIN card. The indicative sentence for Count 10 offence of Misconduct in Public Office (plea of not guilty) was 1 year and 4 months imprisonment, the objective seriousness being assessed as “below mid range”. The circumstances of the Count 10 offence included that it occurred over a period of 2 years and involved the offender making sexual comments about the inmate, revealing personal information about himself, sexual innuendo, offering personal favours to her, deliberately visiting her alone and engaging in an inappropriate sexual relationship which included the acts which were the subject of the separate Counts 8 and 9 for which the offender received separate sentences. The complexity of her Honour's sentencing undertaking, including as it did 51 Counts, verdicts of guilty and of not guilty, pleas of guilty earning different percentage discounts according to whether the plea was entered early or late and involving a variety of offences of indecent assault and sexual assault, with overlap of offences for sexual assault and the Misconduct in Public Office counts makes her Honour’s careful judgement a difficult to apply reference for sentencing here.

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 Integrity Commission Inquiry which was partially true and partially not a full disclosure. Speaking to the media, as he did, was not a criminal offence but it was a breach of NSW Police Force guidelines relating to contact with the media because he gave preference to one reporter. When revealing to the press the prior events, the offender did not realise the significance of the modus operandi used in those events to the offence involving the luring of children away from their parents, immediately under investigation. He explained in evidence that his personal reason for disobeying the direction of his senior officer was that he thought members of the community should be aware of the possibility that there was a serial child molester on the loose so that they could take appropriate steps to protect themselves and their children. It was his perception that his superior's direction to not disseminate the information of prior events to the press was based on a desire to protect the reputation and standing of the NSW Police Force from “shock jocks” in the media who might be critical of the failure of police to catch the child molester, despite what appeared to be repeat offending. At the time of sentence he accepted that his perception may have been wrong. He did not receive any personal reward for his misconduct in public office. At [17] Berman SC DCJ found that the statutory offence under s 201 of the Police Act 1990 (NSW) which carried a maximum penalty of a fine, was a relevant statutory analogue for reference. His Honour noted that the Crown accepted that the offender should not receive a sentence of imprisonment. A Community Service Order was not available because the offence did not, for those reasons, carry with it a maximum sentence involving imprisonment. At [34] his Honour observed that the offence of misleading the Police Integrity Commission could have been dealt with summarily in the Local Court but came to this Court because the common law offence of Misconduct in Public Office could not be dealt with in the Local Court. For the Misconduct in Public Office the offender was fined $2000 and for the offence of misleading the Inquiry he was separately ordered to perform 200 hours community service.

96. The Offender refers to the Court’s power to reduce his penalty on account of his facilitating the administration of justice and relies on the efficiency which he brought to the conduct of the trial. He relies on section 22A CSP Act (Defence final written submissions 22/11/2024 – MFI 2 at [55]–[58]). In addition to my referral to his admissions of breach of the Code of Conduct and generally NSW Police Guidelines, I take into consideration that before the commencement and then during the trial, the Offender cooperated in bringing efficiency by settling with the Crown agreed facts, Exhibits G and H. That cooperation reduced time in the trial by avoiding the calling of police witnesses and evidence of DNA. I accept the Offender’s submission that his cooperation toward bringing efficiency to the trial to some extent, in this way, is a relevant consideration in mitigation of sentence which might otherwise be imposed. The Offender does not seek that I specify a discount, nor does the Offender submit mathematically the extent to which the sentence might be reduced accordingly. In my opinion, that 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].

97. Both Dr Nielssen and Mr Jones assessed the Offender as to present a “minimum” and a “low” risk of reoffending respectively. Mr Jones, in the footnote page 6 of his report, explained that a “low” risk of offending is the lowest possible assessment level and that risk assessment tools are unable to state that an individual has a “zero” risk of offending. Dr McSwiggan was not asked to and did not provide a recidivism risk assessment. He will no longer carry the authority of police officer in his engagement with members of the community. Taking into account his background of exemplary service to the community as a serving police officer for almost 21 years, that the subject offending is out of step with that long-time lifestyle and conduct, the expert opinion evidence that the Offender’s risk of reoffending is minimal is easily accepted. Protection of the community from the Offender does not weigh heavily in exercise of my sentencing discretion.

98. As for Dr McSwiggan, when Dr Nielssen interviewed the Offender, he was in prison on remand under the designation of a “non-association” prisoner because of his past employment as a police officer. This means that the Offender has been detained whilst on remand, spending 23 hours of each day in a cell on his own measuring approximately 4 m x 1.5 m. His one hour in the exercise yard was missed on occasions of staff shortages and the Offender had gone up to 8 days at a time without leaving his cell. He received his meals and occasionally the use of a tablet computer to make calls through a hatch in his cell. The Offender’s wife and family members visited him most weeks. He has been exposed to some threats and abuse while in the exercise yard, but has not mixed with other prisoners because of his designation of “non-association prisoner”.

99. Dr Nielssen provided the following expert assessment of hardship experienced by the Offender whilst incarcerated:

“Mr Coleman has certainly found the conditions in prison to be more onerous that (sic) nearly every other inmate, because of his former role as a prominent member of the Sex Crimes Squad, which means that he would be forced to remain in strict isolation within the prison for his own safety, with very little access to facilities such as exercise, and even basic medical care. It (sic) also an especially distressing experience for a person who has been dedicated to his work as a detective, who until recently had accrued more than a year of leave entitlements.”

102. Dr Nielssen’s observations of the Offender’s isolation whilst incarcerated whilst on remand awaiting sentence, should not be assumed as the conditions of incarceration which the Offender will experience following classification for placement within the prison system after sentence. It is not to be assumed that protective 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 prisoners on account of his prior employment as a police officer.

103. In my opinion, the Offender is entitled to a degree of mitigation of sentence on account of the onerously harsh conditions of hardship of non-association custody which he has experienced during remand and which amounts to a significant punishment already experienced.

104. In addition, he is entitled to some mitigation of sentence both because this is his first experience with incarceration and on account of the ongoing hardship he will likely experience because of his prior employment as a police officer. These hardships are likely to be made even more difficult for him than would be the care for another police officer experiencing their first incarceration because of his impaired self-perception and ability to inhibit his behaviours in the normal way and to appreciate the social contexts in which he is placed when dealing with other prisoners.

105. That he is a person of otherwise good character is to be afforded less weight as a mitigating circumstance for him, than it might be for another offender, that being a feature for sentencing of persons who misconduct themselves whilst in public office in circumstances where their good character entitled them to the position of trust which their offending abused: Obeid (No. 12); Blackstock v R [2013] NSWCCA 172.

106. That the jury found the Offender guilty of the offence of Misconduct in Public Office, as earlier explained, was the jury’s normative, evaluative assessment that the Offender’s culpability was so serious as to be criminal. The duties imposed on the Offender as a Detective Senior Constable, investigating the Victim’s allegations against John in contemplation of possible criminal proceedings and as I have explored in these reasons, was an onerous duty. The departure from that duty, is to be treated strictly in this sentence. The real damage done to the public confidence in NSW Police Force and specifically in the function of impartial investigation of a complaint which might lead to criminal prosecution of another person, must be seen as seriously damaged by the subject offending.

107. I have concluded, that the level of the Offender’s mental impairment in his application of judgement, personal restraint, perception of the significance of his actions and their consequences in his overall decision-making whilst misconducting himself in his role and duties of police officer leaves his Misconduct in Public Office offending deserving to be characterised as starkly serious because any member of the community, and particularly a complainant of sexual assault is entitled to expect and find safety from sexual exploitation when in the company of police and more so when located in a police car or within a police station. Maintenance of the public trust in the impartiality of police investigation of crime is fundamental for NSW Police Service to maintain the public’s consent and the power of officers to detain, arrest and otherwise control important aspects of our lives. The public places a critical trust in police officers that they will act lawfully and in the best interests of society. The Offender’s decisions and actions, whilst affected to some degree by a level of impairment of judgement and inhibition, were wilful and gross. Whilst aware of his serious breaches of the NSW Police Force guidelines, he decided to continue, damaging the public trust and in immediate terms, causing damage to the Victim. As Bell CJ (Stern JA and Button J agreeing) put it in Astill, important elements of sentencing for this type of offending must be to deter other police officers from misconduct, but also to show the public that condign punishment will be visited on police officers who betray the trust reposed in them and failed to live up to the high standards of the police service. The sentence must recognise the true victim for the harm done by the Offender’s Misconduct in Public Office is that public office and, more precisely, the community’s trust in it. The sentence imposed and the non-parole period set in the sentence must adequately punish for the offence.

108. In accordance with the authorities, the Crown presses and the Offender concedes that general deterrence and denunciation are to be given more weight in sentencing for an offence of Misconduct in Public Office than for other types of offending. Evaluation of the need for general deterrence and denunciation must incorporate the lessened objective seriousness of the offending and the lessened moral culpability of the Offender because of his mental impairments at the time of the offending. In my opinion, the lessening of the objective seriousness by account of the causal contribution of his mental impairment, to some degree lessons the need for general deterrence and denunciation in determination of the head sentence. The whole of the factors of mental impairment which I have identified amongst subjective considerations and considerations of hardship whilst incarcerated mitigate the overall sentence which would otherwise be appropriate. In particular those considerations are, in my opinion, relevant to the adjustment of the non-parole to parole ratio pursuant to s 44 CSP Act.

109. His personal features as an offender entitled to individual justice include reduced capacity to reason as an ordinary person, in the field of his diminished 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 of his impaired judgement making to his actions, in the context of his functional abilities generally to manage himself and his behaviour as an otherwise normally functioning person.

110. A special circumstance deserving of adjustment of the s 44 non-parole to parole ratio is that the Offender has excellent prospects of rehabilitation. There can be no doubt that after the experience of 6 months of incarceration whilst subject to non-association conditions, his perception of the gravity with which the Court views his offending has been corrected. He was visibly distressed when in Court for his sentencing on 27 September and 15 November 2024.

111. I am mindful that the Offender during his service as a police officer, on occasion sought medical assistance from his General Practitioner for anxiety, depression and what his doctor noted as alcohol issues. In addition, the evidence shows that he expressed interest in deployment to policing work away from the Crimes Sexual Assault and Child Abuse Squad because of the trauma of his work. He had discussed his coping difficulties with his loving and supportive wife. It was his pride in his service which caused him to unwisely not formally seek assistance from NSW Police Force for his change of mental state and instead chose to self-medicate with alcohol.

112. That course shows a level of awareness of the need for medical assistance. Because he will not be a police officer, in the future he will be away from those traumas. His wife has deposed to her willingness to support him. Whilst incarcerated he has been abstinent from alcohol but, Dr Nielssen observed in oral evidence that his craving continues. He is reported to have lost approximately 12kg of body weight.

113. Dr Nielssen recommends that following release to the community, the Offender remain under the care of his long-term general practitioner and comply with a mental health plan of referral to specialists recommended by her; that he continue taking antidepressants and other prescribed medication; that he take up referral to a service with expertise in treating police related PTSD such as at St John of God Richmond Hospital and that he be referred for further investigation of his cognitive and executive function. Mr Jones suggests that ongoing psychological therapy may be required when in the community. All reporting medical practitioners recommend abstinence from alcohol.

114. In my opinion, the s 44 CSP Act non-parole to parole ratio requires adjustment to permit a period of opportunity for the Offender to rehabilitate himself whilst his abstinence from alcohol and compliance with a mental health plan are supervised on parole. It is to the benefit of the community that he preserve his mental faculties and be given the best chance to continue as a law-abiding citizen. 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.

115. The Count 5 and Count 7 offending to some extent overlap the Count 1 offending. The jury were directed in relation to Count 1, to take into account that conduct (Elements Document MFI 23). I disagree with the Crown supplementary submission that “Count 1 does not address the criminality of the non-consensual sexual touching of the Offender of a vulnerable teenage girl in circumstances where he was in a position of power and authority over the Victim. Counts 5 and 7 are offences against the person, and not the community.” (MFI 1 – Crown Supplementary Submission at [21]).

116. The Count 5 and Count 7 offences of sexual touching occurred in the different environments of a meeting in a police car at a park (Count 5) and in an interview room of a police station at the time of completion of the Victim’s police statement (Count 7). I have addressed the physical differences of the sexual touching.

117. I have assessed that the Offender’s degree of remorse for his Count 5 and Count 7 offending is less deserving of a degree of mitigation of sentence because after the passage of approximately 2 years since the offending and after allowing for a degree of impairment of his ability to perceive the seriousness of his actions, to a degree he maintains victim blaming not wholly explained by those impairments.

118. The appropriate sentence for each of the Count 5 and Count 7 offences, separately considered, must provide adequate punishment to make the Offender accountable and to denounce his offending. Because I have determined that his mental impairments justify a lesser reduction of the objective seriousness of each of the Count 5 and Count 7 offences and his moral culpability less of a mitigation of sentence because at the time of each of the offences he did appreciate the criminality of sexual touching without consent, both general deterrence and specific deterrence are less mitigated for these two offences than I have assessed for the Count 1 Misconduct in Public Office offence. His position of authority and trust as the investigating Detective Senior Constable of the Victim’s allegation of sexual assault by John and whilst knowing that she was a vulnerable person displayed a significant power imbalance and abuse of his position, which I find to be an aggravating factor.

119. JIRS statistics for the Count 5 and Count 7 offence pursuant to s 61KC(a) Crimes Act 1900 (NSW) reveal the following for sentences: in the local Court involving individuals who pleaded not guilty and had no prior antecedent criminal record: 60% were sentenced by CCO, 15.8% by ICO and 4.2% by imprisonment. 80% of the 4.2% sentenced to prison were sentenced to a term of 12 months or less. JIRS statistics, applying the same criteria in relation to sentences imposed by this Court include only 2 cases, both of which were by CCO.

120. It is appropriate to proceed by aggregate sentence pursuant to s 53A CSP Act. In my opinion appropriate indicative sentences are as follows:

1. Count 1: 38 months (3 years 2 months) imprisonment.

2. Count 5: 3 months imprisonment.

3. Count 7: 4 months imprisonment.

121. I have referred to the overlap between the Count 1 offending and the Count 5 and Count 7 offending. In the above stated indicative sentences, I have been mindful to avoid double counting and the sentences indicated for each of Counts 5 and 7 have been assessed separately from and in addition to the Count 1 offending.

122. Because there are 3 offences, the Court is required to review the total sentence and consider whether the aggregate imposed is a just and appropriate measure of the total criminality involved. The Court is required to take a last look to see whether the sentence looks wrong when considering the totality of the criminal behaviour. In my opinion, an appropriate head sentence, which is just and appropriate to the totality of the offending behaviour is 43 months (3 years 7 months) imprisonment.

123. In my opinion, taking into account all of my above stated findings including the Offender’s reduced moral culpability, the minimal risk of recidivism, excellent prospects of rehabilitation, the punishment already experienced due to the severity of the conditions of non-association incarceration whilst on remand and the special hardship he will likely experience whilst incarcerated; the appropriate non-parole period in accordance with s 44(2A) CSP Act is 2 years and 2 months imprisonment which will adequately punish and denounce the offending.

124. The Offender informed the Court immediately following his convictions and again during the sentencing hearing that sentencing by way of Intensive Correction Order pursuant to s 7 CSP Act is appropriate. The duration of the term of the aggregate sentence which I have determined exceeds 3 years and accordingly, an Intensive Correction Order must not be made: s 68(2) CSP Act.

ORDERS

125. I make the following orders:

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

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

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

3. 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 the Community Corrective Services and obey all reasonable directions of that service 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 Corrective Services.

5. I recommend that 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.

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Amendments

03 December 2024 - Added reference to R v Coleman (No. 1) [2024] NSWDC 575 in Cases Cited and paragraph [3].

Decision last updated: 03 December 2024