DPP v Coleborn [2023] VCC 2086 (10 November 2023)

Last Updated: 22 December 2023

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION

Revised Not Restricted Suitable for Publication

Case No. CR-23-00438

DIRECTOR OF PUBLIC PROSECUTIONS
v
CHRISTOPHER COLEBORN

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2023
DATE OF SENTENCE:	10 November 2023
CASE MAY BE CITED AS:	DPP v Coleborn
MEDIUM NEUTRAL CITATION:	[2023] VCC 2086

REASONS FOR SENTENCE

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Subject: Criminal Law – Sentence – guilty plea

Catchwords: Sentencing – sexual penetration of a child under 16 – offender 52-58 years old – high moral culpability – significant age difference – repeated offending against the same victim – breach of trust – no physical violence or threats – no criminal history – prison more onerous due to physical ill health – low risk of further sexual offending – demonstrated progress of rehabilitation – relatively early plea – utilitarian value of plea during COVID – genuine remorse

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offender Registration Act 2004 (Vic)

Cases Cited: R v Macfie [2000] VSCA 173; Worboyes v The Queen [2021] VSCA 169; Mush v The Queen [2019] VSCA 307; Fichtner v The Queen [2019] VSCA 275; Clarkson v The Queen [2011] VSCA 157; [2011] 32 VR 361

Sentence: Total effective sentence 3 years 8 months imprisonment with a non-parole period of 23 months; 23 days reckoned as already served; 6AAA: 4 years 6 months imprisonment with a non-parole period of 2 years 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	M. Fisher	Office of Public Prosecutions
For the Offender	P. O’Halloran (plea) J. Brancato (sentence)	Gallant Law

HIS HONOUR:

1. Christopher Coleborn, you have pleaded guilty to sexual penetration of Alexander Muller,^[1] a boy under 16, between 18 August 1999 and 17 August 2000 and to indecent assault of Alexander Muller between 18 August 2004 and 17 August 2005.

Summary of offending

2. The agreed basis for your guilty plea is set out in the summary of prosecution opening dated 9 October 2023.
3. In summary, Mr Muller, was born in 1986. You were born in 1947. At the time of the first incident the victim was only 13 years old and you were 52 or 53. At the time of the second incident he was 18 and you were 57 or 58. During this time you were living with your wife and children in a small town in northern Victoria.
4. Both you and the victim were members of a small evangelical Christian church that has only a few congregations across Australia. You were the minister of the congregation based in a nearby town. The victim was a friend of your children, and you were in regular contact through church activities, some of which were held at your home.
5. On one occasion when Alexander Muller was 13 in 1999 or 2000, he slept overnight at your house, sharing a bedroom with your son of a similar age who was his friend.
6. During the night you entered the bedroom and got into the victim’s bed. You fondled his penis and then put his penis in your mouth and performed oral sex on him for some minutes.
7. By your plea, you have accepted that by virtue of an established relationship, you were in a position to exploit or take advantage of the influence which grew out of that relationship.^[2] This forms the basis for Charge 1 – sexual penetration with a child under 16 who was under your care, supervision and authority.
8. Alexander Muller was in fact awake throughout this incident but pretended to be asleep. You left the bedroom without saying anything. The next day, when he was playing with toys on his own, you said to him words to the effect of 'even adults make mistakes, and if I have done anything to hurt you, I am sorry'. He did not respond.
9. The second incident occurred about five years later when the victim was 18 in 2004 or 2005. He attended a church youth camp held at your home. On the first night of the camp, Mr Muller slept in a bedroom with his brother and his friend. The victim was in the bed closest to the door.
10. Sometime during that night, you entered the bedroom and got into Mr Muller’s bed. He awoke to find you lying next to him under the sheets. You pulled down his pants and fondled his penis. He turned his body away from you to stop you touching him, only to find that you then used your finger to touch his anus. He reacted immediately by hitting you in the face with his arm. These two incidents on that night are rolled up in Charge 2 – indecent assault.
11. Mr Muller then got out of bed and confronted you about your behaviour on both occasions. You had a long conversation during which you admitted that you had a real problem and you had been seeing a psychologist about it since the first incident.
12. Mr Muller has not provided a victim impact statement. However, I take into account that your offending would have had a significant impact on his psychological and mental health and that the experience is likely to stay with him for the long term. These sentiments can be gleaned from the statements made by Mr Muller to the police and to the Church.

Procedural history

13. Sometime in 2013, Mr Muller told his wife what you had done to him years earlier. Then on 28 July 2020, he met with a Pastor, and two Elders of the church and told them about these incidents. On 3 August 2020, Mr Muller provided a statement to Church members about what you had done to him but also acknowledging the support he had received from your family.
14. Soon after this, on 12 September 2020, you met with the Pastor and made several admissions to your offending against the victim. The next day you sent an email to Mr Muller apologising for offending against him. You assured him that outside of these two incidents you have not behaved in such a way against anyone else.
15. On the same day you called your son and told him about your offending. You called a family meeting at your home, which your wife, your son, your siblings, and their partners attended. During this meeting you again admitted to sexually assaulting the victim.
16. On 15 September, a couple of days later, you emailed Mr Muller’s father and brother, apologising for your offending. You stated that while it in no way excuses your sin, as you called it, you were in a very dark and difficult place at the time.
17. I note that your church took commendably quick action, issuing a statement in September 2020 and removing you from ministry. You also resigned as a member of the church that same month.
18. About a year later, on 23 August 2021, Mr Muller made a statement about the incidents to police.
19. Police investigated the matter and, another year on, arrested you in Tasmania where you were living, on 18 August 2022. You were extradited to Victoria where a magistrate granted you bail on 20 August 2022.
20. You were committed for trial on 17 March 2023 without contest or cross‑examining any witness.
21. In an attempt to settle the case, you sought a case conference, which was heard in this court on 13 September 2023. With meaningful compromise on both sides, the matter resolved, and you entered a plea at a relatively early stage before a trial date was set.
22. Your plea shows that you accept responsibility for what you did and that you have facilitated the course of justice. Your settlement of the case has a real benefit, both to those personally involved and to the wider community, all of whom have been relieved of the burden of conducting a trial.
23. This benefit is all the more significant at this time because it permits the court to focus its resources on reducing the backlog of trials in other cases. I will reduce your sentence for this reason in a way that makes that clear.^[3]

Personal circumstances

24. During your plea hearing you relied on the following:

Exhibit 1 – a counselling report by David Hunnerup dated 14 October 2023;

Exhibit 2 – a psychological report by Simon Candlish dated 16 October 2023;

Exhibit 3 – personal references by Klaas and Marie Kuipers;

Exhibit 4 – a health summary sheet dated 28 September 2023, a letter from Dr Chia dated 13 October 2023 and a medication summary dated 11 October 2023;

Exhibit 5 – church documents noting your resignation from membership and deposition from church ministry; and

Exhibit 6 – emails you sent to Mr Muller and his family dated 13 and 15 September 2020.

25. You were in your 50s at the time of your offending and you are now 76 years old. Other than the current charges, you have no criminal history and there is no suggestion of any subsequent offending over the last 20 years.
26. You grew up in a poor but caring family environment. You report that your mother was loving and kind towards you, and even though the man you considered to be your father drank heavily, he was not physically abusive.
27. You described experiencing 'a trauma' during your first year of primary school which impacted on your learning and your own psychology in the following years. Nevertheless, you described achieving higher than average grades at school and not requiring any additional support. You reported no behavioural issues at school. You recalled having poor physical health during this time, partly due to your family experiencing financial difficulties. You described struggling with physical education and that you were bullied for your physical size and appearance. You indicated that you had a group of close friends, who were 'studious and conservative' in your words. During your secondary school years, you came to suspect that your stepfather was not your biological father.
28. Following your schooling, having been encouraged to enter teaching, you trained and then taught for a while. You were then attracted to church ministry, and while you engaged in 10 years of further education, you became a pastor placed in a number of rural parishes.
29. You met your wife in your early 20s and married when you were 30.
30. It was during your 30s that you confronted your mother about your father's identity and found out that the man you had called your father was in fact your stepfather. Your mother named another man as your father, but this also turned out to be wrong. More recently, you have discovered you have Aboriginal ancestry connected to the Guyinbaraay people of the Gamilaroi Nation in northern New South Wales.
31. You speak positively of your marriage, which you describe as very fulfilling and happy. You and your wife have had seven children. Your youngest son was born with significant physical disabilities and had a very traumatic early childhood. He remains in the family home where you care for him. You now have 13 grandchildren.
32. In the parish you were working in during the 1990s, due to your chronic fatigue symptoms, a minister from the USA was invited to join you in your work. It turned sour, however – factions arose and the congregation split. You were stressed physically and psychologically and were placed on anti‑depressant medication for a number of months. Your mother also died in the late 1990s.
33. Your first offence occurred in 1999-2000 after which you retired from active ministry.
34. In the period of time leading up to the second offence, you recall struggling with recurring nightmares about your childhood abuse. You commented that you were 'in the midst of the turmoil of those dreams' around the time when the second incident occurred.
35. Mr Candlish, after a thorough assessment, concluded and I accept, that you offended as outlined in Charge 1 in the context of physical health issues, stress, and attempts to ignore your same-sex attraction. You were attracted to the victim, I find, and you admired his qualities, which distracted you from your own identity issues. Your attraction to him is confirmed, in my view, by the offending against him in Charge 2, some years later.
36. In those circumstances, Mr Candlish, a most experienced practitioner in the field, states that you are not considered to have a paedophilic disorder. You do not have an anti-social orientation and you do not present with chronic self-control or impulsivity issues. Having conducted a full assessment, he found you to be at low risk of further such offending.
37. Significantly in my view, you disclosed your offending to your family and cooperated with the timely investigation by your church and elected to cease ministry (See Exhibit 5). I find this to be a significant factor and it is a positive indicator of your remorse.
38. Your wife has stood by you throughout this matter, which is a credit to her and indirectly to you. Your sister and her partner (Exhibit 3) describe you as having lost contact with your children and grandchildren and many close friends due to your offending. That, along with losing a reputation you earned over 50 years of work.
39. You have engaged in voluntary counselling with others but also Mr Hunnerup, an accredited mental health social worker with a history of work in another church, which has been of assistance to you (Exhibit 1). You have engaged with him in over 30 sessions in a mature and considered way, he reports. He observed you to have an unwavering motivation to do and be right and to have a very strong capacity for self-regulation. He describes you to have demonstrated deep regret for your offending that is genuinely victim centred. I accept Mr Hunnerup’s observations.
40. Mr Candlish reports that you do not meet the criteria for any mental health disorder or personality impairment, and you no longer present with any signs of trauma symptoms that may have arisen from your childhood abuse (Exhibit 2).
41. Physically, however, you suffer with chronic fatigue, ongoing bronchitis, asthma, sciatica, bursitis, and an enlarged prostate (See Exhibit 4).

Sentencing issues

42. It has long been established that sexual offending against children is serious because it entails a gross breach of trust. The fact that there is physical and psychological harm that follows from such offending to young victims is often appalling, severe and long-lasting.^[4]
43. Children must be protected from the harm that results from premature sexual activity and adults must be deterred from even thinking about sexual activity with a child.^[5]
44. Consistent with these principles, the maximum penalty for Charge 1 is 15 years' imprisonment and for Charge 2 it is 10 years.
45. In this case, I find your moral culpability for your offending to be high. You were about 40 years older than Mr Muller and at the time of the first incident he was just 13. You were not only an adult, but you were an adult who had the victim in your care overnight while he was visiting your son in your home. The offending, I find, was more than a mere slip, it represented purposive conduct on your part.
46. It would not be accurate to call your offending protracted, but offending against the same person, even after five years, makes the second incident more serious and this will be reflected in the sentence to be imposed.
47. Having said those things, in contrast to some cases that may be considered more serious, your offending did not involve other forms of physical violence or threats against the victim beyond the inherent violation of his body and sexual integrity set out in the charges.
48. While you were in a leadership position in Mr Muller’s community, I find that his presence in your house on the first occasion was not because of any arrangement made based on that leadership position, rather simply because the victim was a friend of your son. This is relevant to the weight I give to your previous good character and whether your position in the church results in a more egregious breach of trust on that occasion. Before I could take that into account against you, I would have to find that to have been the case beyond reasonable doubt, and I do not. I do not find that you used your position at that time to facilitate the situation. The same cannot be said for the second incident, however, which occurred at your house during a church camp in which you were in a specific position of leadership in that church.
49. You did not attempt to hide your offending, rather, you apologised to the victim immediately and more recently engaged with a significant degree of openness with those whom he informed, including your church.
50. You have pleaded guilty at a relatively early stage in the proceeding, although not the earliest, and I find that this, alongside other reports of your evolving attitudes, demonstrates genuine and deep remorse.
51. You have no other criminal history and you have engaged voluntarily in counselling now over an extended period. You have been in the community for a lengthy time since your offending and without further trouble, and you have been assessed as being a low risk of reoffending. So, I find you to have excellent prospects of rehabilitation, which is likely to have already been achieved, at least in part.
52. I find that prison will be harder for you than it would be for a person without your physical ailments, but I accept your counsel’s submission that prison services will be able to provide you with adequate care.
53. The prosecutor ultimately submitted that your offending attracts the need for general and specific deterrence, denunciation and just punishment by way of a head sentence and a non-parole period.
54. Your counsel fairly conceded that the only available sentence that can be imposed in this instance is a period of imprisonment, and I agree.
55. Upon considering the facts in your case and having reviewed like cases and current sentencing practices, I have come to the view that a suspended sentence, even one that is only partially suspended, is not appropriate.
56. Accordingly, I sentence you as follows:

On Charge 1, sexual penetration of a child under 16, 3 years and 3 months;

On Charge 2, indecent assault, 12 months.

57. I order cumulation of 5 months of the sentence on Charge 2 upon the sentence on Charge 1, making a total effective sentence of 3 years and 8 months.
58. I fix a non-parole period, being the period that I find justice requires you must remain in custody and beyond which your release will only be allowed if the Parole Board is satisfied, of 23 months.
59. I declare that you have served 23 days pre-sentence detention and direct that this be reckoned as a period already served under the sentence.
60. In accordance with section 6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed 4 years and 6 months and fixed a non‑parole period of 2 years and 6 months.

Sex Offender Registration

61. Under the Sex Offender Registration Act 2004, Charge 1 is a Class 1 offence and upon being sentenced you automatically become a registrable offender. Section 34 of the Act provides that you must comply with reporting obligations for 15 years.

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^[1] A pseudonym.
^[2] R v Macfie [2000] VSCA 173 at [21].
^[3] Worboyes v The Queen [2021] VSCA 169, [35]-[39].
^[4] Mush v The Queen [2019] VSCA 307 at [77]; Fichtner v The Queen [2019] VSCA 275 at [66].
^[5] Clarkson v The Queen [2011] VSCA 157; [2011] 32 VR 361.