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District Court 13 October 2023

R v Collins

[2023] NSWDC 599

Sexual offences
CRIME CHILD SEX OFFENCES SEXUAL INTERCOURSE WITH CHILD >14 TEACHER COACH SUPPRESSED SEXUALITY

Citation: R v Collins [2023] NSWDC 599
Court: District Court of NSW
Date: 13 October 2023
Judge: Beckett DCJ

Background

A former high school PDHPE teacher and soccer coach (the offender) was convicted by jury of 17 counts of sexual offences against a single complainant (referred to as AW), a student she had taught and coached. The offences occurred between October 2008 and October 2009, when AW was 15 years old. The offender was approximately 11 years and seven months older than the victim and, at the time of the offending, was married in a heterosexual relationship.

The offender did not deny having a sexual relationship with AW. The sole issue at trial was whether that relationship began before or after AW turned 16. The jury found that the sexual conduct had commenced before AW's 16th birthday. The charges were not reported to police until 2021, when AW, by then trained as a social worker, came to view the relationship in a different light.

The 17 counts comprised one charge of aggravated indecent assault (s 61M(1) Crimes Act 1900), six charges of indecent assault of a person under 16 (s 61M(2)), and ten charges of sexual intercourse with a person aged between 14 and 16 years (s 66C(3)). The matter proceeded to a sentencing hearing after the jury verdict in March 2023.

Legal Issues

  • How to assess the objective seriousness of the offences, including the relevance of the victim's apparent willingness, the position of trust and authority, the age differential, and the presence or absence of force or coercion
  • Whether the victim's emotional vulnerability constituted an aggravating factor and whether substantial harm had been established
  • How the offender's mental health conditions, suppressed sexual orientation, and reduced moral culpability affected the appropriate sentence
  • The role of general deterrence where moral culpability is reduced but the offences involve a breach of a teacher's position of trust
  • Whether the s 5 threshold for full-time imprisonment was crossed
  • How to apply totality principles to an aggregate sentence across 17 counts arising from nine separate incidents

Decision

Objective Criminality

The court found that all offences fell below the mid-range of objective seriousness, though not at the very lowest end. The sexual acts involved no physical force, coercion, threats, or physical pain (except in one incident involving a vibrator) (at [39]). AW was found to have been a willing participant in the Wakeling v R sense, though legally incapable of giving lawful consent (at [33]). The 11-year age gap and the origin of the relationship in a teacher-student and coaching dynamic were treated as significant factors going to objective criminality across all counts, even those occurring after AW had moved to a different school (at [31]-[32]).

The court declined to find the offender was a sexual predator. It accepted that the emotional and sexual interest developed gradually over years and that the offender had not deliberately cultivated the mentoring relationship for the purpose of sexual exploitation (at [35]). While the victim had an eating disorder and family conflicts, the offender had not targeted her because of those vulnerabilities (at [36]).

Aggravating Factors and Harm

The court declined to find statutory aggravation by reason of substantial harm in the absence of expert evidence linking the victim's diagnosed conditions (complex PTSD, panic disorder, depression, and anxiety) specifically to the period of unlawful offending, given the further five-year lawful relationship that followed (at [54]-[55]). The court nonetheless acknowledged that sexual offending of this nature implicitly carries long-term psychological harm, reflected in the maximum penalties and standard non-parole periods (at [54]).

Moral Culpability and Subjective Factors

The court accepted the forensic psychiatric evidence that the offender had a depressive disorder, anxiety disorder, and problematic alcohol use at the time of offending, all linked to her suppressed sexual orientation in what the court described as a predominantly heteronormative society (at [68]-[69]). These conditions played a considerable role in her decision to engage in the relationship, reducing her moral culpability. The court also noted her unblemished criminal record, her reputation as a dedicated teacher, the absence of any other sexual interest in children, and a low assessed risk of reoffending (at [65]). The loss of her teaching career was treated as a mitigating factor of limited weight, consistent with established authority (at [66]). The offender had not expressed remorse, though her plea of not guilty did not aggravate the offending (at [67]).

Sentence

Despite the reduced moral culpability, the court found the s 5 threshold for full-time imprisonment was crossed. It held that general deterrence retains a significant role in offences involving adults in positions of trust or authority over children, because the community expects schools to be environments in which children are protected by teachers, not from them (at [72]). Applying totality principles, the court imposed an aggregate sentence of 30 months with a non-parole period of 15 months, allowing for a high degree of concurrence within each incident and modest accumulation between the nine separate incidents (at [80], [87]).

Orders Made

  • Aggregate sentence of 30 months imposed, with a non-parole period of 15 months
  • Sentence commences 12 October 2023 and expires 11 April 2026
  • Non-parole period expires 11 January 2025; first eligible release date 11 January 2025
  • The report of Dr Allnutt referred to Justice Health and Community Corrections, with a recommendation for immediate mental health treatment on admission to Corrective Services

Key Takeaways

  • The District Court confirmed that a victim's apparent willingness to participate in sexual activity does not constitute consent at law and does not negate the offence, but remains relevant to the assessment of objective seriousness under the Wakeling v R line of authority (at [27], [33]).

  • Where an offender's position of trust or authority over a child originates from a teacher-student relationship, that power imbalance continues to inform the objective criminality of later offences even after the formal relationship has ended (at [31]-[32], [35]).

  • Reduced moral culpability arising from mental health conditions and suppressed sexual identity can diminish, but not eliminate, the role of general deterrence in sentencing for child sexual offences committed in the context of a position of trust (at [70], [72]-[73]).

  • Establishing substantial harm as a statutory aggravating factor requires proof beyond reasonable doubt, and where the unlawful offending is followed by a lengthy lawful relationship, it may be difficult to attribute diagnosed psychological conditions specifically to the criminal period without expert evidence (at [54]-[55]).

  • Loss of professional standing as a teacher was treated as a mitigating factor of limited weight, consistent with the principle that an offender who uses their professional position to access a victim must have anticipated that the conduct would bring their career to an end (at [66]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 25AA ; s 21 A( 2); s 21A(3) ; s 21A(5A)
- Crimes Act 1900 (NSW) s (3A); s 61M(1); s 61M(2); s 66C(3)

Cases
- Blackett v R [2012] NSWCCA 201
- FB v R [2011] NSWCCA 217
- Hogan v R [2008] NSWCCA 150
- Muldrock v R [2011] HCA 39
- Nelson v R [2016] NSWCCA 130
- Pannowitz v R [2016] NSWCCA 13
- R v MJR (2002) 54 NSWLR 368
- R v Palu [2002] NSWCCA 381
- R v Wong (2001) 207 CLR 584
- R v Zerafa [2013] NSWCCA 222
- Savvas v The Queen (1995) 183 CLR 1
- Wakeling v R [2016] NSWCCA 33