R v Coulton Trevor
[2010] NSWDC 219
•5 October 2010
CITATION: R v COULTON Trevor [2010] NSWDC 219
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 7/5/10, 28/6/10, 16/8/10, 10/9/10
JUDGMENT DATE:
5 October 2010JURISDICTION: CRIMINAL JURISDICTION JUDGMENT OF: Finnane QC DCJ DECISION: Counts 1 and 4 - I sentence the offender in each case to imprisonment for a period of 12 months as a fixed term. The sentence in each case commences today, 5th October 2010 and concludes on 4th October 2011.
Count 2 – I sentence the offender to a non-parole period of 5 years and a head sentence of 10 years. It will be cumulative on the sentences for the first and fourth counts. The non-parole period commences on 5th October 2011 and concludes on 4th October 2016. The balance of the term commences on 5th October 2016 and concludes on 4th October 2021.
Count 3. I sentence the offender to a non-parole period of 5 years and a head sentence of 10 years. It will be cumulative on the sentences for the first and fourth counts and partly cumulative on the sentence for count 2.
The non-parole period commences on 5th October 2012 and concludes on 4th October 2017. The balance of the term commences on 5th October 2017 and concludes on 4th October 2022.
I recommend that he be conveyed to the Long Bay Medical Surgical Unit for assessment.CATCHWORDS: CRIMINAL LAW - sexual offences - sexual intercourse - act of indecency - circumstances of aggravation - sentence - relevant factors - hardship (no) - exceptional circumstances (medical needs) (no)- special circumstances (first time offender) (yes)- LEGISLATION CITED: Section 61O, 66D, 66 C(2), 61O Crimes Act 1900 (NSW)
Section 160 Crimes (Administration of sentences) Act 1999 (NSW)CASES CITED: R v Burrell (2000) 114 A Crim R 207 PARTIES: Regina
Trevor COULTONFILE NUMBER(S): 2008/00000649; 2008/00019158 COUNSEL: Mr E Ozen (for offender) SOLICITORS: Office of Director of Public Prosecutions
Peacockes Solicitors (for offender)
1. The offender, Trevor Coulton, was convicted by a jury at trial of four offences, namely:
1. Inciting JD, a boy of 11, under his authority, to commit an act of indecency with him. Sec 61O Crimes Act 1900 (NSW) – 5 years maximum;
2. Attempted sexual intercourse with JD, a boy of 11 under his authority. Sec 66D Crimes Act 1900 (NSW) - 20 years maximum;
4. Inciting JD, a boy of 11, under his authority to commit an act of indecency with him. Sec 61O Crimes Act 1900 (NSW) - 5 years maximum.3. Sexual intercourse with JD, a boy of 11 under his authority. Sec 66 C(2) Crimes Act 1900 (NSW) - 20 years maximum;
2. All the offences took place in a shed next to the house which he shared with the complainant’s grandmother. This shed was full of equipment and was very congested. The offender would sit on a chair and engage in sexual activity with the complainant while he was seated.
3. The first offence involved him pulling his pants down and asking the complainant to stroke his penis, until he ejaculated. He engaged in this activity with the complainant on a number of occasions. When he gave evidence, the complainant, who was just 16 years old at the time he gave evidence, made it plain that this conduct caused him distress.
4. The second offence involved him attempting to force his penis into the anus of the complainant. This offence was committed by the offender whilst he was seated on a chair. He pulled the pants of the complainant down, pulled his penis out and attempted to force it into the anus of the complainant. The complainant moved himself away from the offender to prevent him penetrating his anus. This conduct also caused him considerable distress.
5. The third offence involved him getting the complainant to suck his penis. The complainant found this quite sickening.
6. The fourth offence involved him getting the complainant to stroke his penis until he ejaculated. The complainant’s reaction to this was the same as his reaction to the first offence.
7. All offences took place between 30th May and 1st December 2004.
8. The offender was the de facto partner of the complainant's grandmother and the complainant had always regarded him as his grandfather. Because of these offences, the complainant ceased to go to visit his grandmother and the offender.
9. The offences occurred in premises controlled by the offender and, at the time of each offence, he was exercising authority over the complainant.
10. The offender conducted his defence by cross-examination of the complainant and other witnesses and by giving evidence and calling witnesses. He denied the evidence of the complainant and claimed that he had done nothing at all.
11. A great deal of medical evidence was called, aimed at establishing, amongst other things, the improbability of the offender being able to commit these offences because of the wounds on his legs and his general immobility. However, the medical evidence did not establish that he could not have an 11-year-old boy sitting on his lap and it seemed to establish that until 2005, he was sufficiently mobile as to be able to enter a doctor’s surgery walking with the aid of crutches.
12. The jury rightly rejected the offender’s protestations of innocence. These protestations were clearly false.
Difficulties in sentencing the offender.
13. Sentencing the offender poses many problems. He is completely unrepentant and continues to deny that he committed any offences at all. However, he is quite disabled. The offender is extremely obese and has had one leg amputated because of cancer. He has had operative treatment on the other leg to remove another cancer and he requires regular dressings to be applied and needs fairly constant nursing.
14. However, he can drive a motor vehicle and he is thus able to do his own shopping and go to places such as shopping centres, cinemas and other places of entertainment.
15. He can travel by aeroplane and he has travelled in that way on three or four occasions to this Court. Submissions have been made on his behalf, that his medical condition is so extreme that I should find exceptional circumstances and not impose upon him any gaol sentences. In normal circumstances, sentences for these offences would require the imposition of full-time custody for a substantial period.
16. As I have said earlier, the offender was living with the complainant’s grandmother in a house in Dubbo during the time that he committed these offences. He also owned another house in Dubbo, which he left vacant and he apparently had investments that partially supported him. He was the carer of the grandmother, who became increasingly disabled. She now lives in a nursing home. He lives in an aged care facility in which he has his own accommodation. According to the probation and parole report, he does not enjoy a good relationship with other residents in this facility and continues to maintain his innocence.
17. He is now 69 years old. According to a probation and parole report, the offender’s attitude to his offending is one of a number of factors which jeopardizes his current accommodation and it may well be the case that after he is sentenced, he is homeless. As well as continuing to deny his guilt, and telling other residents of his supported accommodation that he was the innocent victim of a “set-up”, the offender has made inappropriate comments to the probation and parole officer about the complainant and other young persons. In the opinion of the probation and parole officer, his attitude raises significant concerns for the welfare and safety of young children under the age of 18 should they come in contact with him. He has been rated for sexual re-offending statistically and although the rating is a low one it seems to me to be obvious that there is a significant risk that he will re-offend, notwithstanding his current disability which is very significant.
18. His offences were disgusting and a major abuse of trust. The complainant was entitled to expect that his grandfather would protect him, not abuse him. The worst offences of the four were the attempts at anal sex and his encouragement of the complainant to suck his penis, an act of sexual intercourse.
19. The maximum sentence for the second offence is 20 years imprisonment. The maximum sentence must be reserved for those who commit offences of the worst type. It is very difficult to categorise the seriousness of sexual offences. However, this offence would have to be regarded as a very serious offence. It involves placing his penis into the mouth of the complainant. Having regard to the age of the complainant, his own age, the way in which he did this act, the fact that the complainant made known his distaste for it, requires a salutary sentence; and in my opinion, would, in the ordinary course, require a non-parole period of seven years and a head sentence of 10 years.
20. The attempt at anal intercourse was disgraceful and disgusting. In my opinion, it also calls for a non-parole period of seven years and a head sentence of ten years. The two offences of committing an act of indecency are of a lesser type of seriousness and in each case, there should be a sentence of one year in prison as a fixed term.
21. It would follow that if I were to impose these sentences of full-time custody upon him, he would be faced with being in custody probably for more than eight years.
22. During the trial, as I have said, a great deal of medical evidence was presented about his state of health. To a great extent, his deplorable state of health has been caused by his refusal to stop smoking and to lose weight. He has now lost one leg because of cancer and the other leg appears also to be affected by cancer. The sentence that I impose will be lessened because he will face real hardship, above the ordinary as a prisoner. However, there is no basis for concluding that prison life will make his various medical conditions worse. There is in fact evidence that the medical staff in the prisons will be able to treat him adequately. There is no doubt also that the parole authority has power to grant parole in exceptional circumstances such as when a person is dying or there are some other compassionate circumstances. (See Crimes (Administration of sentences) Act 1999 (NSW), section 160).
23. In exceptional circumstances, a judge may refrain from imposing a gaol sentence which is otherwise warranted. (See R v Burrell (2000) 114 A Crim R 207). However, the fact that a person is ill does not give him some form of immunity from suffering the punishment that is appropriate for the crimes he committed.
24. That decision and numerous other decisions establish that exceptional circumstances mean something more than mere hardship. All prisoners experience hardship when they are deprived of their liberty and sometimes sentences of imprisonment also impose hardship on their families.
25. Therefore, something more than the hardship which any prisoner could be expected to suffer is required before a court can find exceptional circumstances. In the present case, the offender is old, in very bad health and because of the seriousness of his condition, as someone who could well die. Not only does he have cancer, but he cannot walk and must live largely in a wheelchair.
26. At the same time, he cannot be permitted to move around the community freely because he may come in contact with children under the age of 18 and they are at risk if he comes in contact with them. He is completely unrepentant and thus, is not able to go to any programmes in the community for sex offenders, since such programmes are not available in the country area in which he lives and are not available for those who deny that they have committed any offences at all.
27. In my opinion, he represents a continuing risk to young male persons under the age of sixteen years.
28. Because of his age and his disabilities, he will be admitted to the medical surgical unit at Long Bay Gaol for a full medical assessment and, once stable, he can be transferred to the Aged Care Rehabilitation Unit at Long Bay.
29. I have considered the submissions that I should find exceptional circumstances of hardship and should impose non-custodial sentences, perhaps with a heavy fine. I have given very serious consideration to those submissions, since it is obvious that the offender is very seriously ill and is quite disabled. Nevertheless, the evidence does not permit me to come to the conclusion that there are exceptional circumstances. His medical needs can be met in the prison system and his offences warrant imprisonment.
30. Since it is the first time he has been convicted and prison will be undoubtedly harder for him than it would be for normal prisoners, I find special circumstances and I will impose very much shorter non-parole periods than I would otherwise impose, but the head sentences will be of the order I have already indicated. There will be some cumulation of the sentences. In lieu of the non-parole periods for the two most serious offences of seven years, I will impose non-parole periods of five years.
Sentences
31. Counts 1 and 4. I sentence the offender in each case to imprisonment for a period of 12 months as a fixed term. The sentence in each case commences today, 5th October 2010 and concludes on 4th October 2011.
32. Count 2 – I sentence the offender to a non-parole period of 5 years and a head sentence of 10 years. It will be cumulative on the sentences for the first and fourth counts.
33. The non-parole period commences on 5th October 2011 and concludes on 4th October 2016. The balance of the term commences on 5th October 2016 and concludes on 4th October 2021.
34. Count 3. I sentence the offender to a non-parole period of 5 years and a head sentence of 10 years. It will be cumulative on the sentences for the first and fourth counts and partly cumulative on the sentence for count 2.
35. The non-parole period commences on 5th October 2012 and concludes on 4th October 2017. The balance of the term commences on 5th October 2017 and concludes on 4th October 2022.
36. The offender is entitled to parole on 4th October 2017 and is to be released from all consequences of the sentences on 4th October 2022.
37. I recommend that he be conveyed to the Long Bay Medical Surgical Unit for assessment.
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