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District Court 21 January 2019

R v Coleman

[2019] NSWDC 285

Sexual offences
CRIMINAL LAW SENTENCING SEXUAL INTERCOURSE WITHOUT CONSENT HISTORICAL MATTER VERDICT OF JUDGE ALONE TRIAL

Citation: R v Coleman [2019] NSWDC 285
Court: District Court of New South Wales
Date: 21 January 2019
Judge: Wilson SC DCJ

Background

The offender was convicted of one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW), following a judge-alone trial. The offence was committed between February and March 1996, when the offender was 31 years old, at a granny flat in Bondi Junction. The complainant was the offender's nephew.

The trial judge found beyond reasonable doubt that the offender had escorted the complainant, who had been drinking and was unable to resist, to his residence and there anally penetrated him without consent. The complainant had verbally objected and attempted to resist. The offender was arrested in December 2016, more than 20 years after the offending, and was found guilty on 4 June 2018. He maintained his innocence at sentencing.

The matter came before Wilson SC DCJ for sentencing on 21 January 2019. The offender had been in custody from 27 May 2018 onwards, with additional periods in custody following his initial arrest and two bail breaches.

  • What was the objective seriousness of the offending, and where did it fall on the spectrum of sexual assault offences?
  • What subjective factors were relevant to the sentence, including the offender's background, criminal history, and risk of reoffending?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • What sentence was appropriate, having regard to consistency with comparable cases and the applicable maximum penalty of 14 years.

Decision

Objective seriousness: The trial judge found the offending fell within the mid-range of seriousness. Both the Crown and defence counsel accepted this characterisation. The conduct was described as "brutal" in nature. The court noted that courts have consistently treated non-consensual intercourse as a serious offence, including where no additional violence beyond the assault itself is involved. The complainant's victim impact statement demonstrated lifelong consequences affecting almost every aspect of his life.

Subjective case: The offender's background included institutionalisation in boys' homes from around age 13, migration to Australia from Scotland, and a significant criminal history. A psychological report by Karen Burgoyne was tendered. The court gave weight to the offender's difficult personal history while balancing that against the seriousness of the offending and the risk of reoffending.

Consistency: Sentencing statistics produced only a population of four comparable cases, all resulting in full-time imprisonment, with head sentences ranging broadly from three to six years. The court placed limited weight on these statistics given the small sample size, preferring instead to be guided by the maximum penalty and the individual circumstances of the case.

Special circumstances: The court found special circumstances existed, warranting a greater proportion of the sentence allocated to parole. The offender would benefit from supervised reintegration into the community. The court was also mindful of the offender's risk of institutionalisation given his criminal history.

Orders Made

  • The offender was convicted of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900.
  • Non-parole period of four years, commencing 27 May 2018 and expiring 26 May 2022.
  • Head sentence of six years, expiring 26 May 2024.

Key Takeaways

  • The District Court confirmed that non-consensual intercourse is treated as a serious offence warranting full-time imprisonment, including in historical matters where there is no additional violence beyond the sexual assault itself.
  • Where a judge-alone trial is conducted, the sentencing court draws directly on its own factual findings from the trial judgment to assess objective seriousness, without the need for additional agreed facts.
  • A finding of special circumstances can rest on multiple overlapping factors, including the need for supervised reintegration and the risk of institutionalisation arising from a history of incarceration.
  • Sentencing statistics carry limited weight when the comparable case population is very small; in such cases, the maximum penalty and the specific circumstances of the offending provide more reliable anchors for the sentencing exercise.
  • Victim impact statements, while not determinative of objective seriousness, formed part of the court's evaluative assessment of the harm caused by the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Conte v R [2018] NSWCCA 209
- Ibbs v The Queen (1987) 163 CLR 447
- R v Gebrail (unrep, 18/11/94, NSWCCA)
- R v Hartikainen (unrep, 8/6/93, NSWCCA)
- R v May [1999] NSWCCA 40
- R v McNaughton (2006) 66 NSWLR 566
- R v PGM (2008) 187 A Crim R 152
- R v Pham [2005] NSWCCA 94
- R v Russell (unrep, 21/6/96, NSWCCA)