DPP v Coomer [2018] VCC 2249

• 6 charges of sexual penetration of a child under 16 - maximum sentence of 10 years' imprisonment;

• 3 charges of committing an indecent act on a child under 16 - maximum sentence of 10 years' imprisonment;

• 1 charge of recklessly causing injury - maximum sentence of 5 years' imprisonment; and

• 6 charges of assault - maximum sentence of 5 years' imprisonment.

2 I sentence you on the basis of the prosecution opening[1], which was read out in court. I need to outline your offending in order to make clear the basis on which you are to be sentenced. In summary, over a charged period of seven years, when she was aged 14 to 21 years, you sexually and physically abused a vulnerable female, and provided her with drugs. You are 11 years older than her.

3 The complainant, who I will refer to as ST in order to preserve her anonymity as required by law[2] was abandoned by her mother when only a few years old and although her father had her living with him, was, in my view, effectively abandoned by him in later years, and particularly when she was aged 15.

4 When ST was about 10, in 1997, she moved from Victoria to W.A. together with her father and brother, who is two years older.

5 You were living in the same street in W.A. and came to know her father. You meet ST when she was aged about 12, in 1999. You were aged 23, almost double her age. I find that she was already a vulnerable girl, with low

self-esteem. I am satisfied to the requisite standard that you began grooming her from this age, befriending her, spending time chatting with her, providing her with lollies, and telling her how beautiful she was. This was attention she was lacking in her family, and given her young age, it is understandable why she gravitated towards you and enjoyed your attention. But it must not be forgotten that she was only 12 years old, and wanting to spend time with you was for her, not, repeat not, for sexual reasons.

6 In 2000, when ST was aged 13, I am satisfied to the requisite standard that you continued to groom her, making provocative facial gestures towards her, and telling her that your girlfriend was jealous of her. You began inviting ST to your house, and she often attended, where you would play video games and 'play fight'. This was further grooming of her, as in the so-called play fight, I am satisfied to the requisite standard that you touched her on the breasts and vagina, pretending it was by mistake, but then doing it again.

7 On one occasion, you watched her showering and later told her you had seen her naked, that she was extremely beautiful, and you could not stop thinking about her since. You then began to touch and caress her hands.

8 About a month before ST's 14th birthday, so while she was still 13, you told her that you loved her and that you were connected in a way that you did not share with your then girlfriend. You kissed her, putting your tongue in her mouth. A few days later, at her house, with her father in bed in another room, you kissed her again, then put your hands under her T-shirt and touched her nipples. This shocked and overwhelmed ST, still not 14 as I said, and she then made efforts to stay away from you. She told you she did not love you and wanted to be with boys her own age. You ceased your sexual contact at that time.

9 You are not to be sentenced for these acts of touching her or for the grooming, but these acts are highly relevant as background to the offending which occurred later in Victoria, and I find the attention you paid ST clearly drew her into continuing contact with you.

10 Your girlfriend apparently noticed the attention you were giving the complainant and raised her concerns with you, but you denied anything was going on.

11 In the month or two after ST turned 14 (in June 2001) you and your girlfriend, ST and her father moved to Victoria. You all lived at your girlfriend's mother's house until you moved out to live in Echuca after a dispute. Your girlfriend visited you there, and says that you admitted to her that you cuddled and kissed ST in W.A. and that you were interested in young looking girls.

12 ST's brother arrived from W.A. and that family moved to a house of their own family member. After a couple of other moves, they obtained transitional housing and you and your girlfriend then moved in with them.

13 ST was still only 14, but in the environment in which she lived, she began drinking alcohol and smoking cannabis. Her father was aware of this, and was present and in my view, complicit, when you passed her a bong. You then often gave ST money, and supplied her with cannabis and bongs (Charge 1 - supplying a drug of dependence to a child).

14 I am satisfied to the requisite standard that you continued, or resumed, your grooming of her, buying her things such as CDs and notebooks, and supplying her with cannabis. The grooming you had engaged in over two years or so by then had the desired effect, and one night, when ST was drunk, she went into your room and kissed you, putting her tongue in your mouth as you had done to her. She was still 14, and you were 25.

15 The law against sexual activity with children aged under 16 exists to protect young people from themselves, when they may not realise the danger they are exposing themselves to, but the law principally exists to protect them from exploitation by adults such as you, who take advantage of their vulnerability. I am satisfied that you did exploit her vulnerability and groomed her over a significant period so that what you wanted was what happened - you were able to then resume sexual contact with ST. ST was not consenting, she was submitting to your emotional and sexual attention bestowed on her since she was 12 and 13.

16 Your girlfriend recognised this, because when ST apparently apologised to her for what had happened between you and ST in W.A., your girlfriend correctly told ST that it was not her fault and to stay away from you. Your girlfriend ended her relationship with you soon after and moved out of the house.

17 However, your grooming had worked, and from the start of 2002, on occasions when ST's father and brother were not home, you engaged in sexual acts of kissing ST, putting your fingers in her vagina, and having her masturbate you.

18 On one particular occasion you engaged in simulated sex, grinding your erect penis into her vagina through clothing (Charge 2 - indecent act with a child).

19 The two of you began going to the local high school on long walks, and there engaged in sexual activity. On one particular occasion, you again engaged in simulated sex, only this time you exposed your erect penis as you pushed into her vagina through her clothing, and then you instructed her to suck your nipples as you masturbated and ejaculated (Charge 3 - indecent act with a child).

20 On another occasion at the school, after the simulated sex, you rolled off her, pulled down her pants and put your fingers into her vagina (Charge 4 - sexual penetration of a child). When you pulled down your own pants and tried to lie on top of her, ST said no, and instead you grabbed her hand and had her masturbate you to ejaculation (Charge 5 - indecent act with a child).

21 After this incident, you again told her that you loved her, and that as you were in a 'relationship' it was ok to wait until she was 16 to have sex. You told her that you would live together in your own house with a white picket fence, and ST believed this, and wanted to believe it, given her own family life was unstable. You were not in a relationship, because she was still under 16, and you were aged over 25. You were engaged in criminal activity which you had promoted and encouraged since she was 12. I am satisfied that you knew it was not a legal 'relationship' because you told her not to write about your sexual activities in her diary because you could go to prison.

22 You were still living in the same house, and as groomed by you, ST came into your bedroom at night when her father was asleep. Her brother however, became suspicious, as he saw ST in your room at night and coming out the next morning. He would only have been about 16 or 17 himself, and when he raised his concerns with his father, it was brushed off. Even though his suspicions were absolutely accurate, you called him a thief and a liar, to cover your criminal activity.

23 There was another occasion ST recalls when you penetrated her vagina with your fingers while out for a walk (Charge 6 - sexual penetration of a child).

24 By April 2002, when ST was still 14 or 15, she felt pressured to have sex with you. Around this time, you again penetrated her vagina with your fingers and told her in a disgusting form of words that she was 'ready for sex' (Charge 7 - sexual penetration of a child).

25 You regularly discussed sex and ST told you that she did not want to have sex until she was married. Despite this, it seems she gave in to your pressure and submitted, not consented, to having sexual intercourse with you when she was 14 or 15. The first time was in a public toilet block. You had sex with her without a condom, which is an aggravating feature, exposing her to the potential for pregnancy and disease[3], even though you pulled your penis out before ejaculating onto the floor (Charge 8 - sexual penetration of a child).

26 The next occasion of penile penetration was in the bathroom of the house you both lived in, while her father was at home. You turned on the shower so you would not be disturbed, and penetrated her vagina with your penis until you were about to ejaculate. Again, you did not use a condom (Charge 9 - sexual penetration of a child).

27 I am satisfied that you engaged in manipulative behaviour in that when ST told you she felt guilty about having sex when not married, you told her you were married under God because you had "taken her virginity". It became a regular occurrence that ST would sneak into your room after her father had gone to sleep and sexual intercourse would take place.

28 ST turned 15 in June 2002. In October, her father moved out, leaving you, ST and her brother living together. You told her father that you would pay the bills and rent, and buy food for ST. Her father effectively abandoned her to you, and ceased to support her in any way, including financially. You were still arguing with her brother, and you isolated ST from the only other person who might have protected her, by telling her not to trust him, and her brother was told to leave the house, which he did.

29 This left the two of you in the house and there was no more pretence. ST slept in your bed and the sexual activity with a child under 16 continued. Her dependence on you deepened, as you added to the emotional, social and financial dependence by continuing to provide her with cannabis, so that she became dependent on that drug and your supply of it.

30 Another male moved into the house. It was at this point that you began physically assaulting ST. The first time, you were in bed together and during an argument, you grabbed her arm as she tried to get out of bed, and shoved her, so that she went head first into the cupboard door (Charge 10 - assault).

31 Extraordinarily, throughout all this, ST was still attempting to go to school. In 2002, she became close with one particular girl, BA, and you became jealous of their friendship. On one occasion, ST and BA were in the bedroom of the male friend who had moved in. You came in and grabbed BA by the hair and dragged her out of the room. ST tried to get in between you, and you pushed ST into the wall and then slammed the door into her, such that her knees buckled (Charge 11- assault). When ST yelled at you to leave her alone, you grabbed her kitten and threatened to harm it if she left. ST managed to take the kitten from you, and she and BA went to BA's house where ST remained for about three days, until her withdrawal from the cannabis you had been supplying her with became too much, and she returned to live with you, and the drugs.

32 You were engaging in emotional manipulation and family violence. It is made worse by the fact ST was still only 14 or 15. From telling her, inappropriately, how beautiful she was at the age of 12, you continued to manipulate her, now at age of 14 or 15 by putting her down and calling her names, and telling her her father had left because no-one wanted to put up with her. The physical abuse also continued; on one occasion you put a pillow over her face to stop her from crying, which you had caused by yelling at and pushing her. ST thought you were going to kill her and yelled through the pillow that she loved you, in order to get you to stop. You then removed the pillow (Charge 12 - assault).

33 While she was still 14 or 15, you introduced ST to methamphetamine (speed). She asked you if she could try it. If I need to repeat this, I will. She was a child and you were the adult. The fact that she asked did not make it legal or appropriate. You and a friend showed her how to inhale the speed into her nostrils and you continued to provide her with speed from then on (Charge 13 - supplying a drug of dependence to a child).

34 The sexual activity continued, and on one particular occasion that ST recalls, you penetrated her vagina with her on top of you, but she found it painful. You were apparently wearing a condom this time (Charge 14 - sexual penetration of a child).

35 The physical abuse continued and ST asked her father to move back in, presumably to protect her. Before he did so however, you committed another assault on her, kicking her in the leg and punching her in the side so that she fell and hit her elbow on the couch (Charge 15 - assault).

36 By this time, you had begun controlling who ST spent time with, and if others were present, you humiliated her in front of them. You called her names and then provided her with drugs 'to feel better'. She felt she had nowhere to go as she was isolated and addicted to the drugs.

37 In June 2003, around her 16th birthday, her father and his partner moved back in. You moved out and ST tried to end the contact between you. However, she did not get on with her father and his partner so she found herself back living with you at your friend's house, as she had nowhere else to go.

38 You continued to be violent towards her, particularly if she refused to have sex with you. On one occasion, you threw a fan heater at her which smashed her front teeth out. She required emergency treatment in hospital (Charge 16 - recklessly causing injury). Her teeth still require dental and cosmetic work[4].

39 In June 2004, around her 17th birthday, ST entered a residential rehabilitation facility to get off the drugs. On her return to the house you were living in, she no longer wanted to have sex with you, and you reacted angrily, shoving and hitting her in the back while you were both in bed (Charge 17 - assault).

40 ST tried to leave you several times over a number of years, staying with friends and in refuges, and being homeless, and even living with her father, but ended up back where you were, and the drug abuse and physical abuse continued. You threatened to rape her on occasion. ST began self-harming and became depressed, anxious and even more isolated. She attempted another detoxification at age 19. In 2008, at age 21, you assaulted her by kicking her because you had become enraged at her texting someone (Charge 18 - assault).

41 From the summary I have just given, the findings I have made and referred to in that summary, including any aggravating features, and from the maximum sentences provided for sexual and drug offences against children, it is clear that your offending is very serious and your moral culpability is high.

42 I will consider later in these remarks whether your moral culpability is reduced by any relevant factor.

43 I accept the prosecution's submissions as to the factors that make your offending very serious as follows:

• First, the young age of the victim when the sexual offending commenced;

• Next, her vulnerability because of her family circumstances and lack of protective parents;

• Next, the fact that you exploited the form of trust that her father had placed in you when leaving her in your care;

• Next, the fact that you introduced her to premature sexual activity and exposed her to the harm that can, and did, cause;

• Next, the severe impact on ST, to which I will refer in a moment;

• Next, the 11 year age difference between you;

• Next, from 2002, the fact that the sexual offending was accompanied by violence;

• Next, your grooming, manipulation, threats, emotional abuse and her drug dependency kept her within your influence and compounded her inability to report the offending to anyone in authority;

• Next, you devised a plan for her to lie to her family, friends, DHHS and the police to keep your offending from being detected, which was successful; and

• Lastly, her drug dependency grew from your introduction of drugs to her at a young age.

44 I received a statement from ST[5], read out by her, in which she powerfully set out the trauma and suffering which you have caused her. I take the contents very much into account in deciding the appropriate sentence. I also received as part of the material as to the impact on her, a letter from her treating psychiatrist dated July 2018, detailing a diagnosis of generalised anxiety disorder and depression, affecting her attention and concentration, and a history of borderline personality disorder. Also outlined are the many ongoing symptoms that ST suffers, which include panic attacks, manic/dysphoric episodes, self-harm, risk of substance abuse and anxiety driven compulsive behaviours; abandonment issues and pain symptoms, flashbacks, intrusive thoughts and compulsive behaviours. In the opinion of the psychiatrist, all of this places ST's health at risk of further deterioration if not managed correctly,

45 On a positive note, despite the terrible disruption to her teenage years, ST has clearly become well educated over a number of attempts at school, TAFE and university, and her statement is an eloquent testament to who she was before you came into her life, who she became, and who she is now.

46 Amongst other important things she said about the impact on her, she spoke of never getting to live the life of a normal teenage girl developing into an adult, that you made her so afraid of the world outside the door that she was too afraid to leave. These two things alone caused her immense depression and severe anxiety. She said self-harm by cutting herself was the closest she could get to suicide, but the nights spent deciding between death and waking up the next day went on for years. She said the multiple forms of abuse combined with drugs were so normalised as part of her life that she became desperately trapped. Escaping you, she became routinely homeless. She has not been able to hold a job or complete her studies without taking time off because of her anxiety and depression. She feels the pain of a lack of ability to live up to her potential, and she wishes she was able to be all she is capable of. I will read her last paragraph in full. She said,

"Your Honour, I hope to leave this courtroom feeling that my rights do matter, that my story matters and that I deserved the same as every little girl deserves, to be protected and safe, that I was somebody. I hope to leave know that people care, that I was worth more than that and that my community and society knows what happened to me, and that it is not my shame, but his shame. This is a burden that I have had to carry my whole life, but I hope leaving this courtroom I can know that it is no longer a burden I carry alone."

47 I want to speak directly to ST. It is his shame and his guilt. It is no longer a burden you carry alone. Through the sentence that the court will impose, the community will know what happened and express its denunciation of such dreadful crimes committed against a vulnerable child. I know there will be more difficult days to come, but the determination and resilience you have shown will stand you in good stead. I wish you well for the future.

48 Returning to you Mr Coomer, I turn now to the other matters that I must take into account. The first matter is your plea of guilty. You are entitled to have that taken into account in your favour and I do so. It did save the community the time and cost of a trial, and it avoided ST having to give evidence again at the trial.

49 However, it was not an early plea, in that it was entered only five days before the trial date in April 2018, and, because ST was cross-examined at the committal in May 2017, your late plea did not spare her from the ordeal of giving evidence at all, which if avoided, is always a significant factor in cases of child sexual assault.

50 Further, I doubt that the plea is reflective of much remorse. As I told your lawyer during the plea hearing, I observed you to shake your head for much of the reading of the prosecution opening, which detracts from findings of a full acceptance of responsibility by you and feelings of remorse. When I raised that with your lawyer, he responded that you may have been distracted by "irrelevant issues". It may be that conduct was reflective of your personality, which I will come to when I outline the opinions in the report I received from Forensicare. I note that you did not engage in this conduct in my summary today.

51 Your lawyer submitted that guilty pleas often carry more weight when historical sex offending is involved, and cited a statement made in a sentence of another judge of this court.[6] That was a case where the offending was alleged to have occurred over 50 years earlier, and the judge's statement must be seen in that light. Further, in that case, 30 years after the events, the accused apologised to the victims' mother for his behaviour, and on arrest, 50 years after the events, the accused made full admissions. He pleaded guilty at the earliest possible opportunity. On the plea, a letter of apology to his victims was read to the court acknowledging the harm that he had caused over that 50 years. A case such as yours, with offending between 10 and 16 years ago, no admissions, a contested committal, and a late plea, is not in the same category.

52 While yours is a 'historical' case in the sense that there was no immediate report to police, for good reasons[7], I do not accept, as submitted by your lawyer, that the lapse of five years (from the end of the offending to the report to police) means that on a trial, the jury may have realistically entertained a real doubt as to whether ST was aged under 16 years at the time of the sexual penetrations.

53 I have accorded your guilty plea the weight that it has in the circumstances of your case[8], that is:

• a willingness to facilitate the course of justice by your written plea[9] entered in circumstances where you report you do not remember precisely what occurred[10]; but

• limited remorse and acceptance of responsibility, because you continue to consider the offending as a 'relationship'.

54 Next, I take into account that you have no prior convictions and so will be sentenced as man who was of good character until the offending began in 2001.

55 Next, I take into account your personal circumstances as best I can ascertain them. You are now aged 42 years. I have attempted to glean your personal history from your lawyer's amended written submissions[11], and from the history provided by you to the Forensicare psychologist[12]. However, there are some inconsistencies, which make such an exercise difficult. Dr Davidson, the Forensicare psychologist, also found it difficult due to what she described as your "wandering, verbose conversational style".

56 I have not taken your history from the report of psychologist, Ms Karavelis[13], who has been treating you since October 2017. On the original plea date of

20 July, I informed your lawyer that without her being called to give evidence, I would not accept many of her statements in the report, which statements I then set out. The prosecutor indicated that she wished to cross-examine her.

Ms Karavelis was not available that day. The plea was adjourned to 24 October to obtain her attendance and I ordered the Forensicare assessment and report. Ultimately, your lawyer confirmed that Ms Karavelis' report would only be relied upon for the diagnosis of depression, and the conclusion that you would be at risk of mental deterioration if imprisoned. On that basis, the prosecution no longer required her for cross-examination and she was not called to give evidence.

57 Turning to your history, you were born in New Zealand to an Australian mother and a South African father who was much older than your mother and who had been married and had children before. When you were aged six, your mother took you and your older sister to W.A., where she married your step-father. There were step-siblings, and another sister was born of this marriage. Although you apparently felt enormous respect for this man, you felt ignored because your mother paid attention to the other children. You returned to your father in New Zealand at the age of 14-15, and either the two of you came to Australia after nine months, or you came back alone. You were home schooled by your mother from Year 6 to Year 10, returned to school in Year 11 but discontinued. You have completed various short TAFE courses, but had only short term 'unskilled' employment and periods of unemployment due to your substance abuse and, it is said, your mental ill health.

58 After ST finally broke free of you after 2008, according to your lawyer's written submissions you turned your life around by 'beating your substance abuse problem' and you began to drive taxis. You loved this job and worked in the industry for the next eight years, until you were charged for this offending in November 2016, when your taxi licence was suspended. Throughout much of this time, you worked with less abled people, and assisted your vulnerable passengers. I take into account your work record in this challenging occupation, and recognise that as a result of this offending you will not be able to return to this job which you loved.

59 I was told that you suffered an assault at work in 2014, and you suffer from PTSD as a result. I will refer to this diagnosis again when I come to the Forensicare report.

60 You report that you were sexually abused on two occasions by a step-brother: once when you were aged about seven during a game of "strip jack" in which he apparently requested to penetrate you, and you apparently said it wouldn't work, and suggested you penetrate him instead. You tried to do so, and said you felt weird after that. The second occasion was two years later when he asked you to suck his penis in the bath and you complied.

61 The Forensicare report was ordered to consider the role of mental illness in your offending, your risk of future offending, and any treatment recommendations. These two episodes of sexual abuse do not seem to feature in Dr Davidson's opinion. Your lawyer noted that these two what he described as "heinous acts" were merely described as "some sexual abuse" in her report, and he sought to draw a link between that abuse and the beginning of your substance abuse seven years later at age 16.

62 The weight to be given to an offender's own sexual abuse will vary from case to case, and an offender has the onus of establishing the fact of it, and the manner in which it is relevant to sentence[14]. Here, I note that your treating psychologist, Ms Karavelis, appears only to have received a report of the first episode of abuse[15], and I am not satisfied that the sexual abuse, even accepting there were two episodes, is a matter that is linked to your substance abuse, or reduces your moral culpability, if that is how it is put. That is not clear. I do take it into account as part of your personal circumstances, and I find that your childhood was disrupted, unhappy, and involved bullying and two episodes of sexual abuse.

63 Dr Davidson referred to your extensive polysubstance use history. You reported consuming alcohol and cannabis daily from the age of 17 years (1994) until employed in 1995/1996, and using methamphetamine (ice) twice a day when living with ST. I note that the prosecution opening refers to use of amphetamine (speed) during this period as detailed by ST, rather than methamphetamine (ice) as you reported to Dr Davidson. You reported to her that you last used ice in 2014. It seems from that history that although it was put on your behalf that you 'beat your substance abuse problem' in 2008, you continued to use ice to 2014 and cannabis to the date of Dr Davidson's interview with you.

64 Your lawyer referred to a number of psychiatric diagnoses that you purport to have. Despite my remarks made on 20 July about the lack of evidence from a treating practitioner, and the opportunity to obtain evidence with the adjournment to 24 October, I have received no such material.

65 I did receive a letter dated May 2003 from Dr Graf, consultant psychiatrist who says, "as you (meaning the general practitioner) say, [Peter] would seem to have bipolar mood disorder with several manic episodes in the past."[16] This is not a diagnosis. It is a reference to an unqualified view of the general practitioner with no evidentiary basis from the original practitioner or an original practitioner qualified to make such a diagnosis.

66 However, I do take into account that Dr Graf, a qualified psychiatrist, observed you to be mildly hypomanic during your consultation with him, that you reported to him using amphetamine (speed) earlier in that year, (with no reference to ice, and use of speed is consistent with the prosecution opening and ST's account), and that this consultation took place two years into the offending period. Further, he stated that as you refused to take medications you had been on in the past[17], your situation was very difficult particularly if you continued to abuse marijuana and amphetamines, and he felt it was only a matter of time until you were "fully manic" again.

67 I also have a letter dated March 2018[18] from Dr Rassias, the general practitioner who referred you to Dr Graf. Dr Rassias states that you were diagnosed with bipolar affective disorder in 2000. This was at a time before you were his patient. As I have said, there is no supporting evidence for this initial diagnosis. Dr Rassias also noted diagnoses of PTSD after an assault on you in 2014, depressed mood, and in 2016, attention deficit hyperactivity disorder (ADHD), all of which diagnoses I will come back to. As Dr Rassias was your doctor at the time of these diagnoses, I accept that these diagnoses have been reported to him, although I have no information as to who your current treating psychiatrist is[19], and no material from him or her.

68 You told Dr Davidson your current medication is Seroquel, which you said assists you to remain stable. I do not know who prescribes that medication.

Dr Davidson found that your report to her of your psychiatric history was chaotic, and the diagnosis of ADHD surprising. She expressed the further opinions that your presenting features strongly suggest a personality disorder, but substance use or several diagnoses would also explain many of your impulsive and chaotic behaviours; and she questioned the adequacy of the previous psychiatric diagnoses, including Bipolar disorder, PTSD and ADHD.

69 The prosecution have not taken issue with your treating psychologist's opinion that you are currently suffering from severe depression. I note that you reported to Ms Karavelis[20] that within days of being charged in November 2016, your taxi licence was cancelled, and that by February 2017 you were forced to declare bankruptcy, and that you became increasingly depressed. You report in December 2017 having to give up your rental property and move into shared accommodation, and by the date of the plea you were living in a boarding house. On a self-report questionnaire for Dr Davidson, you also reported significant depression, but she expressed some caution in reviewing the test results[21].

70 I accept that you have become depressed, and perhaps more depressed if it is a pre-existing condition, but I find that your current level of depression appears to be a reaction to all of these things I have outlined, which have occurred as a result of offending for which you are responsible. Nevertheless, I accept that having depression when entering custody as you did for the first time on

24 October, the day of your plea hearing, means that your experience of depressive symptoms is likely to be more severe and prolonged than for a prisoner without that depression, and that you should be monitored closely in custody. I take that into account in deciding the appropriate sentence[22].

71 Having regard to the material I do have, I make the following findings about your mental health and any link with your offending:

• Your disrupted family life and environment is likely to have contributed to your unstable personality and chaotic personal history;

• I accept Dr Davidson's reticence to make a new diagnosis of personality disorder and I note again the lack of information from past, recent and current treating clinicians as to past, recent and current diagnoses;

• I accept her opinion that overall, your offending appears to have been driven by personality factors, including entitlement, behavioural dysregulation, and opportunity in an extremely chaotic environment, and accept her view that there was insufficient evidence that noncompliance with medication contributed to your offending;

• I accept her opinion that your insight into your offending is limited, that you present as having above average intelligence and your judgment appears unimpaired, although your decision making is often poorly reasoned;

• For the reasons already given, I do not accept the 'collateral evidence'[23] as to your previous mental health diagnoses; and

• In particular, I find there is insufficient material to enable me to accept that you have Bipolar Disorder, or had it over the seven year period of offending, or to consider whether it led to your substance abuse or to consider whether your mental functioning was impaired by that disorder or substance abuse as a result.

72 On the basis of these findings, I am not satisfied that there is any mental illness that contributed to your offending, or impaired your mental functioning to such an extent as to reduce your moral culpability. Therefore, your moral culpability remains high.

73 Dr Davidson assessed your risk using instruments available to her as a psychologist. Overall, she considered your risk of sexual re-offending to be low-moderate. However, given your admission by your pleas of guilty to committing sexual offences against a child aged 14 or 15, and if accepted, your admission to your former girlfriend as to your interest in 'young looking girls', I question

Dr Davidson's findings that you have no sexual deviance[24] and that there was no indication of sexual attraction to children[25], although I note that she does refer to considerable minimisation by you of the offending, and to your cognitive distortions[26].

74 In my own assessment of your risk of sexual reoffending as part of the sentencing exercise, I take into account that you have not committed another sexual offence since June 2003, ST's 16th birthday, although there were subsequent threats of sexual violence. As to your risk of non-sexual violence, I take into account that you have not committed another violent offence since 2008.

75 Ultimately, I find that given your past offending, the most likely scenario for sexual re-offending would be against a vulnerable teenage or underage girl when you are particularly destabilised by substance use and you perceive or create an opportunity. Given your self-report of rapid and extreme mood swings including episodes of poorly controlled anger and other emotions[27], and tendency for outbursts of aggression[28], if combined with substance use, there is a risk of violent re-offending.

76 Dr Davidson noted you had the capacity to engage with a psychologist, and I note again that you were apparently consulting a psychiatrist before you went into custody[29], but Dr Davidson considered that with your complex presentation, long term work targeting your personality difficulties is warranted and she noted that this has not occurred so far.

• independent psychiatric review with a forensic psychiatrist to clarify the most appropriate diagnoses and from that basis a suitable treatment regime could be initiated;

• ongoing psychological intervention with a forensic psychologist; and

78 I endorse those recommendations and strongly encourage any person dealing with your rehabilitation and treatment to apply them.

79 On balance, I think that with such treatment and long term work, and given the time since you offended, there are some prospects for your rehabilitation and reduction in your risk of re-offending. I find that your likelihood of sexual and violent re-offending remains possible, but not probable.

80 Your lawyer sought the exercise of mercy, and submitted that a non-custodial sentence could be imposed, having regard to the principles in Boulton[30]. Those submissions were ill-conceived and made on an erroneous basis that you were in a relationship with your underage victim, and that you made a[31] grave mistake.

81 The prosecution submitted that only a sentence of imprisonment on all charges met all the sentencing objectives. I agree.

82 Apart from those matters personal to you to which I have referred, I must also take into account deterrence, especially general deterrence which is of the utmost importance in cases involving sexual offending against children, and even more so, when committed by people in whose care the child has been placed. That means that by my sentence of you the court must seek to deter other men from committing sexual offences against children, especially those within their care. Further, I find that without further treatment, there remains a risk of you committing more offences, and so my sentence must also seek to deter you from re-offending.

83 Before I turn finally to the sentence, there are three further matters I must deal with. The first is that application has been made for an intimate forensic sample to be taken from you and through your lawyer, you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the sample that is then to be taken is a blood sample, and police may use reasonable force to enable such a procedure to take place.

84 The second matter is that as a result of my sentence today, you become a registrable sex offender. You will be required within seven days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life. My Associate will now ask you to sign a document to acknowledge that you have received notice of these obligations.

85 Mr Cinar, would you accompany my Associate to assist Mr Coomer if he has any questions.

88 The third matter is that you are to be sentenced as a serious sexual offender on the sexual offences, after sentences of imprisonment are imposed on

Charges 2 and 3, which will happen. Although you are to be sentenced as a first-time sex offender, the factors that make your offending serious apply from the first charge, the first sex offence, and there is no alternative to a term of imprisonment for all charges.

89 As a result of your status as a serious sex offender for Charges 4-9, and 14, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed on those charges. In order to achieve this purpose, I have the power to impose sentences greater than is proportionate to your offences. However, the prosecution do not seek that, and I do not intend to do that.

90 It is also necessary for the sentence I impose on those charges to be wholly cumulative on the other sexual charges after Charge 3 unless I order otherwise, because of your status as a serious sex offender. I have decided to order some concurrency because of the factors in mitigation of sentence. In saying that, I have also had regard to the limits the serious sex offender sentencing regime places on the application of the principle of totality[32].

91 Despite the factors that mitigate the seriousness of your offending, including your plea of guilty, that this is the first time you are in custody, that there has been no offending before or since the period of offending, and the principle of totality as modified, these are offences which the community expects to result in stern punishment. As courts have said:

"A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate[33]."

"Reflecting community views, courts have condemned in the strongest terms sexual offending against children by those responsible for their care[34]."

93 The court must impose a sentence that is just in all the circumstances, and that reflects the community's abhorrence of sexual violence, particularly committed against a child, with the damage that has caused, but also committed against an adult whose abuse has continued from their childhood by the same perpetrator. These principles apply, no matter how long ago the offending occurred.[35]

96 Charge 1 - supply drug of dependence to a child - 5 years' imprisonment;

97 Charge 2 - indecent act with a child - 2 years' imprisonment;

98 Charge 3 - indecent act with a child - 2 years 3 months' imprisonment;

99 Charge 4 - sexual penetration of a child - 3 years 6 months' imprisonment;

100 Charge 5 - indecent act with a child - 12 months' imprisonment;

101 Charge 6 - sexual penetration of a child - 3 years 6 months' imprisonment;

102 Charge 7 - sexual penetration of a child - 3 years 10 months' imprisonment;

103 Charge 8 - sexual penetration of a child - 4 years' imprisonment

104 Charge 9 - sexual penetration of a child - 4 years' imprisonment;

105 Charge 10 - assault - 7 months' imprisonment;

106 Charge 11 - assault - 14 months' imprisonment;

107 Charge 12 - assault - 14 months' imprisonment;

108 Charge 13 - supply drug of dependence to a child - 5 years 6 months' imprisonment;

109 Charge 14 - sexual penetration of a child - 4 years' imprisonment;

110 Charge 15 - assault - 7 months' imprisonment;

111 Charge 16 - recklessly causing injury - 2 years' imprisonment;

112 Charge 17 - assault - 7 months' imprisonment;

113 Charge 18 - assault - 12 months' imprisonment.

114 The sentence on Charge 13 of 5 years 6 months' imprisonment is the base sentence. I direct that ten months of the sentence imposed on Charge 1; four months of the sentences imposed on Charges 2, 3, 4, 6, 7, 8, 9, 14 and 16; three months of the sentence imposed on Charge 5; one month of the sentences imposed on Charges 10, 11, 12 and 18 are to be served cumulatively on the sentence imposed on Charge 13 and on each other. All other sentences are concurrent.

115 That makes a total effective sentence of 9 years 11 months' imprisonment. I direct that you serve a minimum term of 7 years 8 months before becoming eligible for parole.

116 I declare that you have served 58 days in pre-sentence detention not including today. These will be deducted administratively from your sentence.

117 I declare that you have been sentenced as a serious sex offender on Charges 4-9 and 14, and direct that this be noted in the records of the court.

118 Lastly, if you had not pleaded guilty, but had been found guilty after a trial on all your charges, the sentence I would have imposed is a total of 14 years six months' imprisonment with a non-parole period of 12 years.

120 MS CHURCHILL: No, I think that was - no, Your Honour.

121 HER HONOUR: Yes, thank you. Mr Coomer may be removed. I thank everyone for their attendance and I will adjourn until 11.30.

[2] Section 4 Judicial Proceedings Reports Act

[3] Khem [2008] VSCA 136

[6] DPP v Jacob Clifton (a pseudonym) [2017] VCC 169

[7] Sections 52, 53 Jury Directions Act

[8] Phillips [2012] VSCA 140

[9] Section 216 Criminal Procedure Act

[10] Forensicare report 19 October 2018 [49]

[12] A court ordered assessment dated 19 October 2018

[14] Beevers [2016] VSCA 271

[17] Being unknown medications prescribed by an unknown practitioner

[19] "Current treating psychiatrist" is referred to in Exhibit 4, but no name is provided.

[22] Verdins [2007] VSCA 102

[23] Forensicare report, [52]-[54], [75]

[30] [2014] VSCA 342

[32] HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]

[33] Hedigan AJA, cited in DPP v Toomey [2006] VSCA 90, [18]

[34] Dalgliesh [2017] HCA 41, [43]

[35] DPP v Toomey [2006] VSCA 90; Burgess v R [2017] VSCA 59