R v Coleman (No. 2) [2024] NSWDC 576

District Court New South Wales

Medium Neutral Citation: R v Coleman (No. 2) [2024] NSWDC 576 Hearing dates: 1–2 May 2024 6–10 May 2024 13–17 May 2024 20–24 May 2024 16 August 2024 27 September 2024 9 October 2024 15 November 2024 28 November 2024 Date of orders: 28 November 2024 Decision date: 28 November 2024 Jurisdiction: Criminal Before: Montgomery DCJ Decision: (1) The Offender is convicted and I indicate the following sentences: (a) Count 1 – Misconduct in Public Office: 3 years and 2 months imprisonment. (b) Count 5 – Sexual Touching s 61KC(a) Crimes Act 1900 (NSW): 3 months imprisonment. (c) Count 7 – Sexual Touching s 61KC(a) Crimes Act 1900 (NSW): 4 months imprisonment. (2) The Offender is sentenced to 3 years and 7 months imprisonment consisting of a non-parole period of 2 years and 2 months commencing on 24 May 2024 and expiring on 23 July 2026 with a balance term of 1 year and 5 months expiring on 23 December 2027. The earliest date that the Offender will be eligible to be released on parole is 23 July 2026. (3) I direct that the Offender accept the supervision and guidance of Community Corrective Services and obey all reasonable directions of Community Corrective Services including in relation to compliance with any mental health plan provided by his treating medical practitioners and that he remain abstinent from alcohol. (4) I recommend that the Offender be provided with mental health care including prescribed medication and that he be referred to a service with expertise in treating police related to PTSD such as at the St John of God Richmond Hospital. I direct that the reports of Dr Nielssen 7 September 2024, Dr McSwiggan 3 November 2024 and Mr Jones 26 October 2022 be provided to Community Corrective Services. (5) I recommend that Community Corrective Services assess as soon as is reasonably practicable the Offender for referral to the Special Purpose Unit at Long Bay Prison, and assess as soon as is reasonably practicable the prisoner's classification and placement so that his conditions of non-association will be reviewed and amended as appropriate. Catchwords: CRIME — Common law offence — Misconduct in public office — Abuse of public trust reposed in Detective Senior Constable of NSW Police Force — Abuse of position as an investigating officer of complaints of sexual assault to pursue his own sexual gratification with the victim — Non-consensual sexual touching in police car and at police station — Fellatio and penile/vaginal sexual intercourse at police station — Offering money to the victim in exchange for sexual favours — Failure to disclose conflict of interests and maintain a professional relationship with the complainant as an investigating police officer CRIME — Sexual offences — Sexual touching — Touching breasts — Sucking breast SENTENCING — Objective seriousness — Wilful, gross and continuing breach of trust — Corrosive of the community's respect for and confidence in the prosecutorial process as conducted by police officers — Connivance over the course of more than two months — Planned engagement with the victim to achieve personal sexual gratification and keep it secret from NSW Police Force — Mental impairment contributed to the commission of offences in a material way — Objective seriousness reduced but not markedly so — A seriously grave example of the offence of misconduct in public office SENTENCING — Subjective considerations — Mental illness — Anxiety Disorder, police-related Post-Traumatic Stress Disorder, Alcohol Use Disorder and Probable Acquired Brain Injury — Frontal lobe injury and brain dysfunction — Judgement making affected by impairments of social perception and personal inhibition — Moral culpability of Misconduct in Public Office significantly reduced — Mental capacity sufficient to understand the criminality of sexual touching without consent SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victim SENTENCING — Mitigating factors — Admission and remorse qualified by victim blaming — Almost 21 years of exemplary police service — Minimal risk of recidivism SENTENCING — Special circumstances — Rehabilitation — Excellent prospects — Hardship in incarceration — Non-association condition — Prior employment as a police officer Legislation Cited: 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 Cited: 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 Delinicolis & Dellosa [2021] NSWDC 684 R v El-Rashid NSWCCA (unreported) 7 April 1995 R v Farrell (District Court of NSW, unreported, 13 February 2013) R v Hildebrand (No. 1) [2019] NSWDC 957 R v Hoyn [2020] NSWDC 834 R v Obeid (No. 12) [2016] NSWSC 1815 R v Purcell [2010] NSWDC 98 Tepania v R [2018] NSWCCA 247 Category: Sentence Parties: Rex (Crown) Glen Coleman (Offender) Representation: Counsel: Ms Kate Nightingale (Crown) Mr Joel Brook (Offender)