R v COLWILL

Facts

1. The facts are before the court by way of a set of agreed facts.
2. I will deal with the issue of the objective seriousness when dealing with the facts in respect of each of the victims. Accordingly, before dealing with the facts I will go to some matters of general principle relating to the finding of objective seriousness in child sexual assault matters.
3. Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]: "It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness".
4. In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]: "…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL)."
5. Generally, the younger the victim the more serious the offence will be regarded - see for example R v AJP at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14].
6. In Bravo v R [2015] NSWCCA 302 Hulme J (Beazley P, Johnson J agreeing) said at [42]: "As was observed in R v Gavel : '[97] … It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].'"
7. His Honour went on to say at [45]: " … Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, "the offence is less serious because it could have been more serious". As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452: '[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.'"
8. In Mills v R [2017] NSWCCA 87, R A Hulme J (Leeming JA and Beech-Jones JA agreeing), in addition to referring again to Grove J's statement in Saddler, said: "[57] Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], "In plain language, it does not make what has been done by an offender less serious because it could have been worse."
9. Returning to the issue of the facts, for the purpose of proceeding to sentence I am satisfied of the following beyond reasonable doubt.
10. Going to the offending against EV in 2005 she was 13 years old. During the Christmas period the victim attended their grandparents' residence in Ariah Park. The offender took the victim to their grandmother's caravan and once inside locked the door. The offender instructed the victim to sit on the bed and she complied. The offender then removed the victim's pants and underwear.
11. The offender pushed the victim onto her back and began licking her vagina. The offender's tongue licked the exterior and interior of the victim's vagina.
12. The offender then digitally penetrated the victim's vagina causing considerable pain. The victim said "don't" and kicked the offender towards the groin area. As the offender was kicked back his fingernails scraped the victim causing further pain. The offender said, "it will be alright" but the victim replied, "no it hurts". At this point in time people could be heard outside the caravan and the offender got up and left.
13. Going to the seriousness of the matter, the offender was 18 years of age and the victim 13 years of age. There was some disagreement at the sentence hearing, but the actual conduct relied upon for the charge is the cunnilingus with the digital penetration going to show that the specific act giving rise to the charge was not isolated. The offending continued for some time and ceased when persons were heard outside the caravan. In all of the circumstances this matter is slightly below mid-range.
14. I now turn to the offending involving the victim KW. Over the period of December 2006 and January 2007 the victim visited Ariah Park and stayed in the offender's bedroom, which contained two single beds. The offender was no longer permanently living at the address but was staying there temporarily over the Christmas period. The facts recite that the offender did not reside in the bedroom when the victim was occupying that room.
15. On one occasion the victim woke around daybreak. She was wearing underwear, shorts, and a shirt as pyjamas. The victim felt pressure on her left foot and pressure was repeatedly applied to her left toes. She opened her eyes and observed the offender pushing her toes. The offender entered the bed, at which time the victim was lying on her back.
16. The offender then lay parallel but towards the victim. He moved his hand under the shorts of the victim and moved her underwear to one side. The offender began rubbing the clitoris of the victim, attempting to masturbate her. The victim remained completely still while the rubbing action of the offender continued for some time. When the offender stopped rubbing the victim's clitoris he digitally penetrated the victim's vagina with one finger and repeated the penetration several times. The offender then slowly pulled his hand away. The victim's aunt, Julie, opened the bedroom door and said, "Mick is in bed with K…."
17. The victim later told her aunt of the conduct that occurred during the school holidays. The victim also disclosed the offending to her sister who advised her that EV had also experienced a similar conduct at the hand of the offender. KW, her sister to whom she had complained and EV met and discussed the conduct. They later told the grandmother and mother what had occurred but they were called "liars" and told "these allegations were too serious to be lying about".
18. At the time of the offending against KW the offender was 19 and the victim 15 years of age. The digital penetration was preceded by the rubbing described in the facts. The penetration was repeated a number of times. The offender it would seem voluntarily ceased the offending conduct. In all of the circumstances, this matter is also below mid-range.
19. I now go to the offending involving AV. On 29 April 2011, the victim was at the home of her father at Darlington Point and had watched the royal wedding of Prince William and Princess Catherine. The offender also attended the residence that night. The offender and parents of the victim attended the local hotel where they all consumed some alcohol and returned to the residence.
20. The victim slept on an inflatable mattress with her brother on two single mattresses. The offender was allocated a bedroom at the end of the residence. The victim's brother left to sleep in his own bedroom leaving victim alone in the lounge room, which was only dimly illuminated by the television. The offender laid on the inflatable mattress which the victim's brother had previously occupied. After about 10 minutes the offender moved the mattress on which he was situated so that it was next to the victim. The offender then brought his left arm across the victim in a prone "hugging" position.
21. The victim was wearing pyjamas and was under a doona. The offender then moved his left hand down the front of the victim's body before placing his hand inside the victim's underwear. The offender inserted a finger into the victim's vagina. The victim attempted to push the offender away, wriggling her hips away whilst saying, "no, no, no". The offender continued to force his finger inside the victim's vagina. The offender then lent over the victim pressing his chest and shoulder in order to keep the victim still. He said words to the victim to the effect of, "Do you like this?", "You're enjoying this" and "Keep going, you're okay". The victim continued to say, "No, stop". The victim struck the offender with her left elbow on the upper chest, near the chin. He then rolled over and backed away. The victim ran to her bedroom.
22. In 2021 the victim spoke with EV who disclosed that she had been sexually assaulted. At that time AV told EV that she had been sexually assaulted.
23. The offending against AV occurred when the offender was 24 and the victim was 11. The offending involved persistent digital penetration in circumstances where the victim had told him more than once to stop. There was some degree of force used with the penetration and him attempting to keep the victim still. The victim brought about end of the incident by striking the offender with her elbow. In all of the circumstances the offending is below mid-range but not significantly so.
24. I now go to the offending involving HS. Paragraph 38 of the agreed facts set out that the victim was 8 years of age at the time. As the Crown correctly submits (paragraph 22 written submissions) in assessing the seriousness of this matter I cannot take into account that the victim was under 10 years of age - see The Queen v De Simoni (1981) 147 CLR 383. However I will proceed on the basis that the age of the victim is around the middle of the age range contemplated by the section. Through my associate I raised this matter with the parties after the sentence hearing. The manner in which I propose to deal with the matter before the court is, as I understand the situation, the joint position of the parties.
25. In May 2011 HS visited Ariah Park to visit her grandmother. The offender was also present during this time. The victim and her family remained in the area for 2 to 3 weeks. The victim stayed in a bedroom with her sister with them occupying a double bed inside that room.
26. During the stay the victim was shaken awake by the offender who said to her, "Come with me into the lounge room". The victim initially ignored him. The offender then removed the blanket covering the victim before lifting her upright, guided her out of the bedroom and into the lounge room. They both entered the swag which had been set up in the room.
27. The offender said, "I just want to cuddle" and began touching the victim's vagina. He said to her, "Everyone knows what's going on. If you tell anyone, they'll get mad and they won't believe you. Don't tell your sister. I do it to her as well, it's normal."
28. With that the offender digitally penetrated the victim's vagina, which caused pain but ended after short duration. The victim left the swag and began returning to her bedroom when the offender said to her, "don't tell anyone it's normal".
29. Noting that the victim is around the middle of the age range contemplated by the section, and the general facts and circumstances of the offending this matter is just below the mid-range of seriousness. I understand this assessment to accord with the joint position of the parties.
30. The agreed facts set out that on 28 April 2022 the offender was interviewed by police. During the interview the offender told police that he "I can't say that it did or didn't happen in that matter, obviously, no memory of it." He maintained he could not recall any occurrences of a sexual nature with AV, EV or KW. It would seem that generally the offender told police that he could not remember doing any of the acts alleged against him.
31. Given the authority of Johnson v R [2016] NSWCCA 286 to which the Crown refers in their written submissions the factor of statutory aggravation of the offending occurring in the home of the victim is made out - see s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999.

Criminal History

1. The offender has no criminal antecedents in New South Wales. However in 2023 he appeared before the Ringwood Magistrate's Court in Victoria and was dealt with for receiving, use unregistered motor vehicle, failed to answer bail and it would seem some regulatory traffic matters. He was fined a total of $1000 without conviction. In these circumstances the offender is entitled to some degree of leniency given his age and lack of record. However, given the nature of the offending and noting the time at which the offending occurred, the lack of record does not achieve the same weight as it might in other cases and circumstances.

Victim Impact Statement

1. The court received the victim impact statement prepared by EV. That statement sets out very eloquently, as victim impact statements often do, the short and long term effects of the sexual offending on the victim. I did not understand the Crown to submit that the contents of that statement give rise to the finding of any circumstance of aggravation.
2. Given the relevant authorities, in particular for eg R v Tuala [2015] NSWCCA 8 there are limits on the use to which such statements can be put. However, the effect of the crime on the victim is taken into account by means of s 3A(g) of the Crimes (Sentencing Procedure) Act.

Subjective Case

1. No oral evidence was called from or on behalf of the offender, however, a comprehensive psychological report under the hand of Dr Kim Dilati dated 15 August 2023 was tendered and became Exhibit 1 on sentence. At paragraph 5 of the report, it is noted by the author that the offender presented with limited insight and judgement in relation to his offending however there were no difficulties noted with cognitive function.
2. The offender denied any history of poverty or financial hardship and his parents remained together. He denied any adverse childhood experiences, domestic violence or harsh discipline. It would seem that the offender enjoyed a "great" and active childhood. The offender denied any history of victimisation, sexual assault or exposure to violence. There was no history of substance use or mental health disorders or gambling in his immediate or extended family. Prior to his incarceration, noting that bail was revoked on 12 July 2022 at the time of his committal for sentence, the offender was living by himself in suburban Melbourne.
3. It would seem that the offender had an unremarkable school career. He obtained a Bachelor of Information Technology degree at the Charles Sturt University in 2008. He has had several positions in hospitality. In 2009 he joined the Australian Defence Force as a systems technician. He was transferred to Darwin where he worked for four years until October 2013 when he resigned. He moved to Melbourne in 2018 and since 2021 has been employed as a Senior Engineer and Team Leader for an IT company. The offender apparently would like to remain in that sector and continue to work in that industry upon his release. He has one daughter born in 2013, who presently lives with her mother.
4. At paragraph 31 of the report the author notes, "Mr Colwill provided a vague and elusive psychosexual history". He denied watching pornography during adolescence but instead viewed magazines books and VHS "very rarely" he denied viewing or being aroused by pornographic material involving prepubescent children, minors, homosexual men or women, bestiality or images depicting sexual violence. He identified as heterosexual.
5. Further, at paragraph 40 of the report the author notes "despite pleading guilty to his current charges, Mr Colwill denied urges, thoughts of behaviours consistent with paedophilic disorder". The offender apparently did not recall harbouring sexual interest towards children at the time of his offending and denied recent or current behaviours consistent with paedophilic disorder. Although the offender stated to the author of the report "no means no" and that consent can be provided by anyone who can talk. The offender believed that teenagers and children can consent.
6. The offender denied any history of chronic drug use, problematic alcohol or cannabis use. He had an unremarkable medical history. The offender denied a history of mental health conditions.
7. Essentially there is nothing in the report of Dr Dilati nor was there any other material tendered that operates to reduce the offender's moral culpability.
8. So far as the offending is concerned the author of the report (paragraph 56) reported that the offender provided a vague recollection of the offending conduct to which he is pleading guilty. The report goes on to note that the offender reported a close relationship with the four victims including spending time camping and having family gatherings with them during their childhood. The offender believed that he was attending university around the time of the offending and suggested that there may have been lack of sexual activity in his own life which could have precipitated his offending conduct however he was vague in his recollection and did not recall his offending conduct.
9. The offender scored within the normal range for depression, anxiety and stress. Further the offender denied to the author of the report that he was depressed, anxious or stressed at any time other than following a separation from his partner.
10. At paragraph 67 of the report the author sets out that according to information gathered at interview as well as available collateral information including the facts the offender presented with several risk factors of sexual violence which placed him in the moderate likelihood of sexual violence, low imminence of sexual violence, moderate severity of sexual violence and moderate case prioritisation. A number of risk factors were found to be present, which are set out in full at paragraph 68 of the report.
11. Despite this the author opines that the offender scored within the low range of future violence/case prioritisation, low serious physical harm and low imminent violence. At paragraph 73 of the report the author notes that to reduce the offender's risk of violence it will be imperative that he increases and maintain his protective factors such a stable employment accommodation abstinence from substance use, engagement and meaningful activity and that he attend regular mental health and defence focused treatment and have his risk re-evaluated every six months to mitigate risk factors.
12. Given the contents of the report and in particular paragraphs 64 to 73 inclusive, I am not prepared to make a positive finding on balance at this point that the offender is unlikely to reoffend. It would seem reading the report that much will depend on the offender receiving appropriate treatment and counselling. In particular I express some concern about the lack of insight into the nature of the offending.
13. At paragraphs 74 to 76 inclusive the author of the report opines that the offender at the time of the offending was suffering from a mental health impairment namely paedophilic disorder. This diagnosis was made on the basis that the offender acted on urges involving sexual activity with prepubescent children for over a six-month period.
14. The author of the report at paragraph 91 sets out that there is a recognised link between sexual offending and certain psychological conditions however the relationship is complex and multifaceted, influenced by a variety of factors including individual characteristics, environmental influences, and societal factors. However, I do not understand the report to go so far as to suggest that there is a causal connection between any mental health condition and the offending in the matter presently under consideration.
15. Dr Dilati at paragraph 98 of her report sets out that, in general, treatment of individuals diagnosed with paedophilic disorder involve psychological therapy aimed at managing and redirecting inappropriate attractions, as well as preventing the individual from acting on their urges. She goes on to opine, at paragraph 104 that the offender will require therapeutic and pharmacological treatment in order to reduce his risk of recidivism and increase his prospects of rehabilitation. At paragraph 111 she sets out recommendations for ongoing treatment and counselling.
16. Mr Metcalfe who appears for the offender put in his written submissions that I would find that the offender has good prospects of rehabilitation. I am not prepared to make that positive finding at this point in time. While the offender has a limited record I remain concerned about some of the aspects of the report of Dr Dilati. It seems to me that the offender is going to require a period of intensive and extensive supervision to ensure that he gets the appropriate treatment and counselling to ensure that he not reoffend. This in particular, but also noting the offender's age and that this is his first time in custody indicate the need for a reasonably generous finding of special circumstances. Further to these issues there is also the need for the offender to be supervised to ensure that he properly is reintegrated into the community.
17. Further, it is put that I would find on balance that the offender is remorseful. The offender entered pleas of guilty at the first opportunity. I accept it is unusual for pleas of guilty to be entered in respect of the offending that is presently under consideration. The offender is prepared to undergo the treatment plan as recommended in the report of Dr Dilati. In these circumstances I am prepared to find on balance the offender is remorseful, but nevertheless, that remorse does not achieve significant weight in the sentencing exercise.

General Remarks

1. In passing sentence I must give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. Section 3A provides the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 of the Sentencing Act provides that a court must not impose a sentence of imprisonment unless it is satisfied that having considered all possible alternatives no other penalty other than imprisonment is appropriate. Given the offending, the maximum penalties provided, the criminal history clearly no other penalty other than imprisonment is appropriate. No contrary submission was made on behalf of the offender. Given the length of the sentence that sentence of imprisonment must be served by way of full time custody.
3. It is accepted by both parties that the sentence should commence on 12 July 2022 which is the date on which bail was revoked and the offender being committed to this court for sentence. For reasons already outlined there should be a finding of special circumstances.
4. The offender who is now 37 years of age is to be sentenced for sexual offending when he was aged between 18 and 24. Section 25AA(3) of the Sentencing Act provides that when sentencing an offender for a child sexual offence, "a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts)".
5. This is an appropriate matter for an aggregate sentence. If separate sentences were imposed there would have to be some meaningful level of partial accumulation between the sentences to take into account the fact that there are different victims. However, the principle of totality would also have work to do.
6. The sentences that would have been imposed had separate sentences been imposed are as follows: Sequence 2 relating to EV; Sequence 7 relating to AV and Sequence 1 relating to KW - on each a NPP 2 years 6 months with balance of term of 15 months making a total sentence of 3 years 9 months indicating a starting point of 5 years; Sequence 8 relating to HS a NPP of 2 years 9 months with a balance of term of 1 year 4 months making a total sentence of 4 years 1 month indicating a starting point of 5 years 6 months.
7. I accept that there are slight differences in the criminality involved in sequences 2, 7 and 1. However, the differences are slight and any variation in the sentences to be imposed would be measured in some weeks or a month or two at the most, which is why I have settled on the sentences that I have in respect of those matters.

Orders

1. In respect of each matter to which the offender has pleaded guilty he is convicted.
2. The offender is sentenced to an aggregate sentence of 7 years and 3 months with a non-parole period of 4 years 8 months. The non-parole period is to date from 12 July 2023 and will expire on 11 March 2028. The balance of term on parole of 2 years 9 months will date from 12 March 2028 and will expire on 11 October 2030.
3. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
4. The sentence indicates a finding of special circumstances the reasons for which have been given earlier in these reasons. The non-parole period is approximately 65% of the total sentence.
5. I direct that a copy of the report of Dr Dilati, exhibit 1 on sentence be forwarded to the Department of Corrective Services with the relevant warrant.

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