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District Court 5 October 2010

R v COULTON Trevor

[2010] NSWDC 219

Sexual offences
CRIMINAL LAW SEXUAL OFFENCES SEXUAL INTERCOURSE ACT OF INDECENCY CIRCUMSTANCES OF AGGRAVATION SENTENCE

Citation: R v COULTON Trevor [2010] NSWDC 219
Court: District Court of New South Wales
Date: 5 October 2010
Judge(s): Finnane QC DCJ

Background

The offender, a 69-year-old man, was convicted by jury of four sexual offences committed against an 11-year-old boy between May and December 2004. The complainant was the grandson of the offender's de facto partner, and the boy had always regarded the offender as his grandfather. The offences took place in a shed attached to the home the offender shared with the complainant's grandmother in Dubbo.

The four counts spanned a range of conduct: two counts of inciting the child to commit an act of indecency (stroking the offender's penis to ejaculation), one count of attempted anal intercourse, and one count of sexual intercourse (fellatio). The offences involved a significant breach of trust, with the offender exercising authority over the complainant at the time of each incident.

At sentencing, the offender remained entirely unrepentant and continued to deny committing any of the offences. He had substantial physical disabilities, including extreme obesity, the amputation of one leg due to cancer, and ongoing treatment on the other leg, requiring regular nursing care. Counsel for the offender argued that his medical condition was so severe that no custodial sentence should be imposed.

  • Whether the offender's medical condition and disability amounted to "exceptional circumstances" warranting the imposition of a non-custodial sentence
  • Whether the offender's situation gave rise to "hardship" sufficient to displace the ordinary sentencing approach for serious sexual offences against children
  • Whether "special circumstances" existed to justify reducing the non-parole periods below the otherwise applicable proportions
  • The appropriate sentences for each count, including the degree of cumulation

Decision

The court rejected the submission that exceptional circumstances existed. Although the offender's physical condition was serious, the prison system was found to be capable of meeting his medical needs. His ability to drive, shop independently, travel by aeroplane, and move about with crutches as recently as 2005 all informed the court's assessment. The seriousness of the offences, combined with the absence of remorse and the probation officer's concerns about ongoing risk to children, meant full-time custody was required.

The court similarly declined to find hardship sufficient to displace a custodial sentence. The offender had financial resources, had owned multiple properties, and lived in a supported aged care facility. The court acknowledged that imprisonment would be harder for him than for most offenders, but this did not rise to the level necessary to depart from the ordinary sentencing range.

Special circumstances were found, however, on the basis that the offender was a first-time offender and that imprisonment would bear more heavily on him given his disabilities. This justified a reduction in the non-parole periods for the two most serious counts from seven years to five years. The head sentences remained at 10 years each.

The court structured the sentences so that the two less serious counts (12 months fixed terms each, running concurrently with each other) preceded the two more serious counts, which ran partly cumulatively. A recommendation was made that the offender be transferred to the Long Bay Medical Surgical Unit for assessment upon reception into custody.

Orders Made

  • Count 1: 12 months imprisonment (fixed term), commencing 5 October 2010, concluding 4 October 2011
  • Count 4: 12 months imprisonment (fixed term), concurrent with Count 1, commencing 5 October 2010, concluding 4 October 2011
  • Count 2: Non-parole period of 5 years, head sentence of 10 years; cumulative on Counts 1 and 4; non-parole period 5 October 2011 to 4 October 2016; balance of term 5 October 2016 to 4 October 2021
  • Count 3: Non-parole period of 5 years, head sentence of 10 years; cumulative on Counts 1 and 4 and partly cumulative on Count 2; non-parole period 5 October 2012 to 4 October 2017; balance of term 5 October 2017 to 4 October 2022
  • Eligible for parole: 4 October 2017; all sentences conclude: 4 October 2022
  • Recommendation that the offender be conveyed to the Long Bay Medical Surgical Unit for assessment

Key Takeaways

  • Significant physical disability and chronic medical needs do not automatically constitute "exceptional circumstances" warranting a non-custodial sentence for serious child sexual offences, provided the prison system can adequately address those medical needs.
  • A complete absence of remorse, combined with ongoing denial and conduct raising concerns about future risk to children, weighed heavily against the offender in the sentencing exercise.
  • Special circumstances were established where a first-time offender's disability and age meant that imprisonment would bear more heavily on them than on an ordinary prisoner, justifying a reduction in the non-parole periods even while leaving head sentences intact.
  • The District Court structured partially cumulative sentences to reflect both the seriousness of individual offences and the totality principle, ensuring the overall sentence was not disproportionate.
  • Where an offender's medical needs can be accommodated within the corrections system, the availability of specialist prison medical facilities (such as the Long Bay Medical Surgical Unit) is a relevant consideration in declining to impose a non-custodial sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61O, 66D, 66C(2)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 160

Cases:
- R v Burrell (2000) 114 A Crim R 207