State of New South Wales v Colquhoun [2018] NSWSC 1012

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Colquhoun [2018] NSWSC 1012 Hearing dates: 20 June 2018 Decision date: 02 July 2018 Jurisdiction: Common Law Before: Button J Decision: (1) Pursuant to ss 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), an extended supervision order is imposed upon the defendant for a period of three years, commencing on 4 July 2018. (2) Pursuant to s 11 of the Act, the defendant must comply with the conditions set out in Schedule A to the Amended Summons, annexed to this judgment, for the period of the extended supervision order. Catchwords: HIGH RISK OFFENDER – serious sex offender – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – whether such an order should be imposed – dispute as to conditions imposed – extended supervision order imposed – discussion of appropriateness of various orders Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW Cases Cited: Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Richard Kenneth Colquhoun (Defendant) Representation: Counsel: D New (Plaintiff) S Goodwin (Defendant)

Solicitors: Crown Solicitors (Plaintiff) Legal Aid (Defendant) File Number(s): 2018/67482 Publication restriction: Nil

Judgment

Background 1. Mr Richard Kenneth Colquhoun (the defendant in these proceedings) was born in January 1964, and is therefore now 54 years of age. Since January 1991, when he turned 27, he has spent a very significant portion of his life in gaol. The reason for that is his entrenched sexual attraction to boys under the age of 16 years, and his repeated readiness to act upon that attraction. I proceed to provide some detail in support of those propositions. 2. In 1989, when he was in his mid-20s, the defendant was working as a gymnastics teacher at a community centre in Sydney. He committed a number of penetrative sexual assaults upon a boy who attended that centre. He was able to do so by obtaining the agreement of the mother of the victim to the defendant providing private tuition to him at the centre when it was closed. The defendant has always denied that he committed any offences against this victim. I shall call these the "community centre offences". 3. Whilst on bail for those offences, in January 1991, when he turned 27, the defendant kidnapped two young boys from a park in Manly. They were strangers to him. He detained them in his work van, bound them up, and committed sexual offences against them, including penetration. 4. The defendant pleaded guilty to a number of offences, and maintains his admission today that he was indeed guilty of them. His explanation is that, at the time, he was affected by cannabis and alcohol, and was very angry about having been accused, on his version falsely, of the offending against the child at the community centre. Having said that, he has conceded that he was sexually aroused when he committed what I shall call the "Manly offences". 5. After the defendant was found guilty at the conclusion of a trial by jury in this Court with regard to the "community centre offences", Slattery AJ imposed sentences upon him for both sets of matters. In remarks on sentence of 11 June 1991, his Honour drew attention to the offences and their respective maximum penalties; the facts and circumstances surrounding the offending (including the seemingly planned and calculated nature of the Manly offences, and his position of authority and trust with regard to the community centre offences); the defendant's subjective circumstances (including his substance use, psychiatric history, sexual history, and criminal antecedents); the reservation his Honour held with regard to any remorse shown by the defendant, and its incongruence with the defendant's behaviour during the trial; his guilty pleas in relation to the Manly offences; his prospects of rehabilitation; the principle of totality; and a finding of special circumstances. 6. At the conclusion of those remarks, a total head sentence of imprisonment for 14 years with a total non-parole period of nine years was imposed. 7. The defendant spent almost exactly 9 years in custody, from January 1991 until January 2000, when he was released to parole. 8. In March 2004, whilst living with his parents and on parole, the defendant, by then aged 40, was found to be in possession of child pornography. Children of both genders were depicted, but it is noteworthy that included amongst the images were pubescent boys. 9. The explanation of the defendant for the presence of those images on a computer to which he had access was and is that either a "virus" had infected that computer, leading to the images being unintentionally present, or that his mother, whilst intoxicated, accidentally downloaded the images from a website. 10. In assessing the rational possibility of those explanations being correct, one is entitled to take into account the whole context, which includes not only the fact that it was the mother of the defendant who alerted the authorities about the presence of the images, but also the prior offending of the defendant. I readily reject his explanations for the presence of the child pornography on the computer to which he had access. 11. In October 2004, the defendant was sentenced to a head sentence of eight months with a non-parole period of six months for that offending. An appeal to the District Court was dismissed. In the meantime, the parole of the defendant was revoked; the result of those developments was that he was in custody from May 2004 until April 2006, a period of not quite two years. 12. Interrupting the chronological analysis for a moment, in April 2004, the defendant had been charged with failing to comply with his reporting conditions pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW) (the Child Protection Act). In a nutshell, he had changed his residential address without informing authorities, assertedly because he had been the subject of intimidation as a result of his offending against children having become known in the community. In September 2004, he was placed on a 12 month bond for that offence. 13. In September 2009, after a trial by jury, the defendant was sentenced by Judge Lakatos SC for three offences committed in the first three months of 2007 (it will be recalled that the defendant had been released from gaol again in April 2006). The offences were acts of aggravated indecent assault and of indecency against an 11 year old boy. Judge Lakatos imposed a total head sentence of six years four months with a non-parole period of five years. 14. An appeal against conviction to the Court of Criminal Appeal led to all of those convictions being quashed. The defendant was subsequently retried, and acquitted of all counts. In those circumstances, counsel for the plaintiff in these proceedings was content for me to take the approach that, although those "acquittal counts" are not irrelevant in proceedings such as these, they should be accorded much less weight by me than any "conviction counts". She also accepted that there is no requirement for me to refer to any aspect of the remarks on sentence of Judge Lakatos. 15. In December 2009, the defendant came before Judge Flannery SC for sentence. That was after a separate trial by jury had culminated in verdicts of guilty, but the trial judge had subsequently died. The jury had returned guilty verdicts on three counts of aggravated indecent assault, committed by the defendant in April and May 2007 against a boy aged 13 and a half years. Judge Flannery imposed a sentence that had the effect of extending the total non-parole period imposed by Judge Lakatos by a period of 15 months. 16. Those convictions were quashed by the Court of Criminal Appeal as well. Again, in those circumstances, counsel for the plaintiff accepted that there is no need for me to analyse the remarks on sentence of Judge Flannery. 17. A retrial was conducted, judge alone, before Judge Norrish QC. In the event, Judge Norrish found the defendant guilty of two of the three counts. Judge Norrish, in his remarks on sentence of June 2014, emphasised the offences and their respective maximum penalties; the objective seriousness of the offending; the grooming by the defendant of the young boy; the sentencing principles applicable to re-sentencing; the criminal history of the defendant; the finding that the defendant was at a risk of re-offending in the future; his sexual interest in and emotional identification with young boys; his denial of responsibility and lack of remorse; and his prospects of rehabilitation, with regard to which treatment was assessed as being "impossible". His Honour also spoke of the fact that the sentence imposed by Judge Lakatos for the "acquittal counts" no longer had any role to play, and that Judge Norrish had acquitted the defendant of one of the offences for which Judge Flannery had sentenced him. 18. In the event, Judge Norrish imposed sentences that had expired in their entirety by the date of their imposition. 19. The net result of all of those proceedings was that the defendant was continuously incarcerated from July 2007 until September 2013, a period of over six years (the defendant was on bail from the latter date until the resolution of the proceedings in June 2014). 20. In May 2015, the police charged the defendant with failing to comply with his obligations under the Child Protection Act. That arose from the fact that the police inspected the home of the defendant, and discovered that he had a Facebook account and Facebook messenger account on his mobile phone. Those accounts were unknown to the authorities until that inspection. Upon investigation of the Facebook account, it was found that the defendant had communicated with another "gamer", whose online photographic profile suggested, according to the police, that he was between the ages of 10 and 12 years. A communication sent by the defendant to that person was: "I'm Racoon Baboon Balloon Monsoon Typhoon And Platoon ;)" 1. The defendant was sentenced for that offence in May 2016 in the Local Court. He received a head sentence of imprisonment for two years with a non-parole period of eighteen months, which commenced in May 2016. The remarks on sentence of Magistrate Bartley were not placed before me. An appeal to the District Court against severity was dismissed. 2. Pursuant to that sentence, the defendant was released to parole on 10 November 2017, upon the expiry of his non-parole period. His head sentence expired last month, on 10 May 2018. 3. To complete the conspectus, on 16 April 2018, RA Hulme J imposed an interim supervision order (an ISO) upon the defendant, and made other orders preliminary to the proceedings that came before me. I understand that the ISO has since been extended, and will currently expire on 4 July 2018. 4. To summarise the above: the defendant has convictions for sexual offences against four prepubescent or pubescent boys: the victim of the community centre offences; the two victims of the Manly offences; and the victim of the offences that culminated in the sentences imposed by Judge Norrish. 5. He has been convicted of possessing child pornography (as it was then called), and twice convicted of breaching his obligations under the Child Protection Act. 6. He was recently released from custody after secretly being in online contact with a person whom (one can infer) the defendant believed to be a prepubescent or pubescent boy. 7. Finally, since early 1991, the defendant has been incarcerated for continuous periods of approximately nine years, two years, six years, and 18 months; a total of well over 18 years.