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District Court 28 November 2024

R v Coleman (No. 2)

[2024] NSWDC 576

Sexual offencesPublic order & justice offences
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Citation: R v Coleman (No. 2) [2024] NSWDC 576
Court: District Court of New South Wales
Date: 28 November 2024
Judge: Montgomery DCJ

Background

A Detective Senior Constable with almost 21 years of NSW Police Force service was convicted by a jury on 24 May 2024 of misconduct in public office and two counts of sexually touching another person without consent. The offences arose from his conduct as the investigating officer responsible for handling a victim's complaints of sexual assault against a third party.

Rather than maintaining a professional and impartial role, the offender used his position to pursue his own sexual gratification with the victim. His conduct included non-consensual sexual touching in a police car and at Windsor Police Station, and a Snapchat message offering to pay the victim $700 (at $350 per hour) for sexual activity at a nearby motel. The offending spanned more than two months.

The offender concealed his conduct from the NSW Police Force, failed to record the relationship in police systems, and did not reassign the investigation to another officer despite knowing the Force's Conflict of Interest Guidelines required him to do so. He was sentenced at this hearing following the facts judgment delivered on 9 October 2024 (R v Coleman (No. 1) [2024] NSWDC 575).

  • What is the appropriate sentence for a police officer convicted of misconduct in public office arising from sexually exploitative conduct toward a victim whose complaint he was investigating?
  • How should the offender's significant mental health conditions, including police-related PTSD, Anxiety Disorder, Alcohol Use Disorder, and probable acquired brain injury, bear on his moral culpability and sentence?
  • What weight should be given to mitigating factors, including lengthy and otherwise exemplary police service, remorse, and low recidivism risk, against the gravity of a wilful, prolonged breach of public trust?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW)?

Decision

Montgomery DCJ described the misconduct in public office offence as a seriously grave example of its kind. Drawing on English Court of Appeal authority and NSW case law, his Honour emphasised that the offence struck at the fundamental trust the public must be able to place in police officers. The harm caused was not merely to the victim but to the institutions of law enforcement and to public confidence in the integrity of criminal investigations.

The court accepted that the offender's mental health conditions, particularly frontal lobe dysfunction affecting social perception, personal inhibition, and judgment, materially contributed to the offending. This reduced his moral culpability for the misconduct in public office count, though not markedly so given the wilful, planned, and sustained nature of the conduct. His mental capacity remained sufficient to understand the criminality of the non-consensual sexual touching.

In mitigation, the court acknowledged the offender's almost 21 years of otherwise exemplary police service, though it noted that prior good character receives less weight in breach of trust offences because positions of trust are often only accessible to those with good character. Remorse was acknowledged but qualified by the offender's tendency toward victim-blaming. The risk of reoffending was assessed as minimal, and prospects for rehabilitation were described as excellent.

Special circumstances were found, principally because of the offender's significant mental health needs and the rehabilitative supervision available through parole, which justified a longer-than-standard balance of term. The court declined to impose an Intensive Correction Order because the aggregate sentence exceeded three years, making such an order unavailable under s 68(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Orders Made

  • Count 1, Misconduct in Public Office: 3 years and 2 months imprisonment.
  • Count 5, Sexual Touching (s 61KC(a)): 3 months imprisonment.
  • Count 7, Sexual Touching (s 61KC(a)): 4 months imprisonment.
  • Aggregate sentence: 3 years and 7 months imprisonment, with a non-parole period of 2 years and 2 months commencing 24 May 2024 and expiring 23 July 2026; balance term of 1 year and 5 months expiring 23 December 2027.
  • The offender is to accept supervision and direction from Community Corrective Services, comply with any mental health plan, and remain abstinent from alcohol.
  • The court recommended that the offender receive mental health care, including referral to a service with expertise in police-related PTSD (such as St John of God Richmond Hospital), and that relevant psychiatric and psychological reports be provided to Corrective Services.
  • The court recommended that Corrective Services assess the offender for referral to the Special Purpose Unit at Long Bay Prison, and review non-association conditions as soon as practicable.

Key Takeaways

  • The District Court treated misconduct in public office by a police officer who exploited a sexual assault complainant as a seriously grave example of the offence, emphasising that such conduct corrodes public confidence in the integrity of police investigations and the prosecutorial process.
  • A conviction for misconduct in public office does not require the offender to have obtained the personal benefit they sought; the existence of a conflict of interest with the potential to influence the performance of public duty is sufficient, following Berejiklian v ICAC [2024] NSWCA 177.
  • Where an offender's prior good character enabled access to a position of trust that facilitated the offending, that good character receives reduced mitigating weight at sentencing: Blackstock v R [2013] NSWCCA 172 applied.
  • Established mental health conditions, including acquired brain injury and police-related PTSD, can significantly reduce an offender's moral culpability for a public office misconduct offence, even where those conditions do not negate awareness of wrongdoing.
  • Special circumstances justifying an extended balance of term can be found where the offender has acute mental health rehabilitation needs that make supervised parole particularly important.

Legislation and Cases Referenced

Legislation
- 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
- 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 Obeid (No. 12) [2016] NSWSC 1815