Director of Public Prosecutions v Korczynski
[2022] VCC 1278
•12 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT ANDREW KORCZYNSKI |
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JUDGE: | Todd | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2022 | |
DATE OF SENTENCE: | 12 August 2022 | |
CASE MAY BE CITED AS: | DPP v Korczynski | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1278 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of Guilty – one charge sexual penetration of a 16 or 17 year old child - circumstances of covid-19 pandemic – historical offence
Legislation Cited: Sentencing Act 199,
Cases Cited:DPP v Buhagiar and Heathcote [1998] 4 VR 540; DPP v Carter [1998] 1VR 601; DPP v Hawkins 2017 [VCC] 1943; DPP v Lawrence (A pseudonym) [2021] VCC 132; Clarkson v R (2011) VSCA 157; Page (a pseudonym) v The Queen [2021] VSCA 364.
Sentence: Total Effective Sentence of 19 months, wholly suspended for a period of 3 years, Sex Offender Registration Order for 15 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Penelope Thorpe | Office of Public Prosecutions |
| For the Accused | Joshua Taafe | Doogue & George Pty Ltd |
HER HONOUR:
Introduction
1In late 2004, a PE teacher at a Secondary College in Melbourne engaged in a series of intimate exchanges with a year 12 student at the school: starting with conversation and visits to the PE staff room, then to going to the football together, and leading to sexual penetration in the back of his car at night time. They continued to see one another after she turned 18, and after she left the school.
Plea of guilty a maximum penalty
2Scott Andrew Korczynski you have pleaded guilty to one charge of sexual penetration of a 17 year old child who at the time was under your care supervision or authority.
3The maximum penalty for this charge is 10 years’ imprisonment.
Factual basis of plea
4The prosecution filed a summary of your offending dated 7 July 2022; this became Exhibit A on the plea. It is attached to and forms part of these reasons. I will summarise some of its contents here.
5At the time of your offending in 2004 you were 31; you taught PE at a secondary college in Melbourne.
6Stacey Little[1] was in year 12; she was 17. In November that year, she would turn 18. She was sometimes in your class. Ms Little and her friend Mary Warren[2] started spending lunchtimes with you in the PE office next door to the gym.
[1] A pseudonym.
[2] A pseudonym.
7After a time you swapped phone numbers with Ms Little and in July of that year you invited her and Mary to a night-time football game at Docklands.
8The three of you went to a number of football matches. Mary was there really to distract attention from you and Ms Little being together. You drove. After the games, you dropped Mary Warren home first.
9You started spending more time with Ms Little, at lunchtime in the office and a classroom above the office; sometimes Mary Warren was there. You flirted with Ms Little, you made comments about her appearance and told her she looked good. You touched her on the arm and said ‘I want to spend more time with you’ and that she should come to the PE office more often.
10Mary Warren continued to go along as a buffer. She saw Ms Little sitting on your lap, she saw you holding hands and kissing one another lightly on the lips. Sometimes other teachers came in and Ms Little would get off your lap and change seats.
11Ms Little was in the soccer finals team and you went to watch them play so you could spend time with her. Once you sat together at the front of the bus on the way back from a sport excursion. You told the other students Ms Little had to sit at the front because she felt sick.
12In August 2004 you drove Ms Little and Mary Warren to the year 11 debutante ball. You’re in a photograph with them both at the ball; you told Ms Little that you were going along because she was going.
13After the ball, you drove Mary Warren home but took Ms Little to an estate where there were no houses; you asked her to get out of the car. You grabbed her and kissed her. After a while, you drove her home.
14This marked the beginning of a relationship between you; Ms Little started spending more time alone with you in the office. You would kiss when no one was around.
15Other teachers observed your behaviour. Another PE teacher saw you giggling, sitting close and laughing. This teacher saw you flirting on several occasions, over some months; and he spoke to you about it.
16Another PE teacher at the school saw Ms Little come to the PE office at lunchtime and ask after you. She saw you leave the PE office with Ms Little and the two of you walk towards the stairwell at the end of the corridor. There is photo of the three of you: Ms Little, Mary Warren and you in the PE office taken in October 2004.
17In November 2004 Ms Little went to her friend’s birthday party. During the party you picked Ms Little up and drove towards your house. You got into the back seat of the car together and had penis-vagina sex for the first time. It was painful for Ms Little and awkward in the back seat.
18The relationship continued; sexual activity happened in the back of the car near your house on a couple of occasions, at least two of these occasions at night time and at least three times during the day. These events all occurred before Ms Little turned 18.
19While Ms Little was still at school she began visiting you at your house. At the end of January 2005 you moved to a new house and she visited you there - after she turned 18 you would watch pornography together and have penile vaginal sex and oral sex.
20After Ms Little had turned 18 and got her driver’s licence her sister and father followed her in her car. They parked outside your house. Her sister knocked on the door and confronted you.
21About December 2004, after Ms Little had turned 18, you introduced her to your parents as your girlfriend. Around the same time, Ms Little had described you to her mother and father as her boyfriend or someone that she was in a relationship with. There is a photograph of you at a barbecue at her family’s house in January 2005; other photographs show you on holiday together in a hotel around this time.
22After Ms Little graduated from school, the principal spoke with you about your relationship with her; he told you that it didn’t matter if she was 18 or that she left the school but that you were in a position of high social responsibility and power in that teacher-student relationship.
23Ms Little ended the relationship at the end of that January; you were apparently ‘very upset’ by this.
Procedural chronology
24Thirteen years later, Ms Little reported her allegations to the police in July 2017.
25On 16 July 2017 you were arrested and exercised your right to silence in a police interview.
26You were charged three years later on 21 February 2020; your case passed through various hearings in the Magistrates’ Court. On 20 November 2020 you were committed for trial after a committal hearing at which, through your lawyers, you cross-examined four witnesses.
27Your case then moved through a range of procedural steps in this court and was listed for trial to commence on 2 May 2022. Shortly before the trial was due to commence, a notice of additional evidence was served; a plea offer was made and accepted.
28Through your counsel, you accepted the facts as set out in the prosecution opening.
Prior criminal history
29You have no prior criminal history and no subsequent offending. I will return to the question of the role of your previous good character later in these reasons.
Nature and gravity of the offending
30You fall to be sentenced for a single charge of penetration on an occasion where Ms Little was under your care, supervision or authority; that event is embedded in a relevant context which I take into account.
31The prosecution opening refers to other acts of sexual intimacy both before and after Ms Little’ 18th birthday. Counsel (both prosecution and defence) submitted that these matters provided context for your offending. Non-penetrative acts that fell before the 18th birthday, at that time, were not unlawful. Acts of all kinds after the 18th birthday were lawful, if still tainted by the unlawful genesis of the relationship.
32Through your counsel, you conceded that sexual activity between a student and teacher can’t be characterised as anything other than serious. There was an enormous power imbalance between you and Ms Little at the time of your offending against her. You were 14 years her senior. I understand that you did not have of regular tuition or instruction of her but you were a teacher at her school.
33The relationship between teacher and student is a special one requiring the teacher to both place and defend firm boundaries in all circumstances even when, or especially when, the teacher him or herself is feeling vulnerable for their own reasons.
34You were apparently recovering from being rejected by a woman whom you had planned to marry. This gives some context for what you did: you engaged the attention of a student some 13 years your junior. You submitted, through your counsel that there was nothing particularly vulnerable about your victim not already contemplated by the offence. This submission was made as a comparative one, that is, by reference to other cases where the victim had additional and particular vulnerability, on account, for example, of dealing with a terminal illness at home.
35I add that this characterisation does not really reflect Ms Little’ experience.
36However, I do recognise that Ms Little turned 18 a few short months after the relationship commenced; converting what was an unlawful relationship into just a questionable one by reference to the former power imbalance.
37I take into account that your offending against Ms Little occurred in a relatively short period, close in time to the formal mark of her adulthood. While wholly inappropriate and completely unbalanced, the interaction between you was apparently attended by some mutual desire and affection. Ms Little’s so called ‘consent’, of course is a fiction, and irrelevant, nor does any perceived willingness on her part displace the presumption of harm in the Clarkson sense, but I accept these features distinguish your offending from a more purely predatory form of this offence.
38It’s clear you had a perfectly good understanding of the relationship being wrong: colleagues spoke to you about it, you took Mary Warren along as a decoy. These things demonstrate your awareness of the wrongfulness of your conduct and your persistence in the face of that understanding.
39Your counsel submitted that this offending ought be seen as lower on the scale of the comparable offending category; the prosecutor challenged this characterisation. However I am prepared to find that your offending by reference to its duration and proximity to Ms Little’ adulthood can be placed in the lower end of the scale of similar offending.
Personal Circumstances
40You are now 49 years old and you will be sentenced for what you did when you were 31.
41You were born in Footscray in 1973; you have a brother two years younger than you. Your father is German of Polish background you have a large extended family.
42While your family was a loving one, your father’s parenting style was ’old school’ and this made things difficult for you at times.
43You were shy, small in size and bullied at school. You were in a serious car accident in about 1998.
44You completed your VCE and shortly afterwards a Bachelor of Education at Victoria University. From 1995 you taught physical education at a secondary college before arriving in 1998 as the sports coordinator and teacher at the secondar college.
45From 1999 to 2003 you were in a long-term relationship you expected that relationship to continue however in 2004 your partner left to live in London and you moved back in with your parents, you were, by then, a 31-year-old man.
46You now enjoy a relationship of support and affection with your wife of twelve years who moved in with you in 2007 and whom you married in 2010. You have two children: a son aged nine and a daughter aged five. You are now their full-time carer having lost, as a result of these charges, your entitlement to teach.
47Your family life has not been without its difficulties: your wife suffered postnatal depression, and both children have behavioural challenges that require professional intervention. On the plea, I read the reports of the speech therapists and psychologists charged with their care. As the result of these charges your wife went back to full-time work and you became the primary home parent.
Victim impact statement
48Ms Little filed two victim impact statements, one dated 18 July 2022 and one dated 26 July 2022. I read them both carefully. She writes about feeling intense shame and embarrassment about what you did. It seems that she was either judged, or felt she was judged by those around her. She felt isolated and lost self-confidence. She became suspicious of the motives of others, particularly men, in positions of power. She can now reflect on the fact that, at the time, she was actually a very vulnerable young girl, who was mistreated by you in a very serious way. What you did poisoned her relationship with her peers and family, with her subsequent partner, and even infuses her relationship with her daughter, now with schoolteachers of her own, with anxiety and distrust. None of this was necessary, none of it was her fault this is what you did to her and I will sentence you in the light of this harm.
Matters in mitigation
Guilty plea
49Your counsel conceded that the plea was not early; a contested committal was conducted but your plea followed swiftly after the service of an additional statement which ought to have been provided earlier and which steered this case towards resolution at the last moment.
50I nevertheless accept that your plea had within it very considerable utilitarian value and that it avoided the necessity of a trial and, particularly for Ms Little, the distress and inconvenience of cross examination before a jury.
51You pleaded guilty in the time of the Worboyes principle: waiting times for trials in this court continue to contract, but for now people who take their cases out of what is still an overburdened list stand to receive an additional and palpable discount on their sentence. I make it clear that the sentence in your case would have been quite different but for the application of this principle.
52Significantly, your plea not only spared as Little from giving evidence at trial but it also vindicates her. It says to her: you were believed; you were not to blame. This will be counted in your favour in this sentence.
Previous good character
53As the court of appeal said in the case of Page,[3] a number of provisions of the Sentencing Act 1991 require me to take into account your previous character [4] and the factors to be considered in determining that character. [5] Section 5AA, however, constrains a court’s consideration of these matters in cases concerning child sexual offences if the Court is satisfied that the offender’s previous good character (or lack of previous findings of guilt or convictions) was ‘of assistance to the offender’ in the commission of the offence.
[3]Page (a pseudonym) v The Queen [2021] VSCA 364
[4]See s 5(2)(f)
[5]S 6 Sentencing Act 1991; Page (A pseudonym) v The Queen
54First, your previous good character is a mitigating factor and I count it in your favour. Second, the charge to which you have pleaded guilty is essentially a charge where the breach of trust (and misuse of authority) creates the criminal liability in what would otherwise be a lawful act. Yours is not a case, as in Ryan,[6] of the offender leading a double life between ostensible good works and using the cover of that virtue to offend.
[6]Ryan v The Queen (2001) 206 CLR 267.
55I do not find that your previous good character was of assistance to you in the commission of your offending. I give your previous good character full weight in the sentencing process.
Remorse
56On the materials before me, your ability to accept unequivocally that what you did was wrong is uneven. It is not a portrait of rich insight or deep remorse, nor was it pressed as such by your counsel. Of course absence of remorse does not aggravate a sentence.
57That said, I accept that there is an aspect of remorse that inheres in your plea. You accept that the wrongdoing was yours and that you ought to have conducted yourself properly. I take that into account.
Psychological material
58Dr Michael Davis, clinical psychologist, assessed you after speaking with you and with members of your family. He undertook various risk assessments.
59I have considered the contents of Dr Davis’s report. He concludes, on the basis of that testing and on the passage of time since this offending you are a low risk of reoffending.
60I accept Dr Davis’ conclusion that you present a low risk of sexual reoffending or indeed any kind of offending. I have taken into account the matters outlined in Dr Davis’s report more generally in understanding you in arriving at this sentence.
Prospects of rehabilitation
61I accept that the delay in this case has had the effect of allowing you to demonstrate your long-term rehabilitation over a period of some 18 years. You are also unlikely to be in a context where you have authority over young people again.
62I have read the character references tendered on your plea: your wife Anna, your mother Barbara, your father Stan your former colleague Michael Pisani, former team mate Shane Searle and your friend Wesley Bell. They each have good things to say about you as a husband, son and friend. Having their support will make it more likely your rehabilitation will continue.
Collateral consequences
63Your counsel submitted that there were three pillars in the architecture of your life before you were charged with his offending: your family, your vocation as a teacher, and your love of football but in particular of nurturing students with a particular talent on their way to professional careers in the game.
64Your permission to teach was suspended two weeks after Ms Little’ statement to police in July 2017. You will never return to teaching, or coaching football. The loss of your right to teach has fundamentally changed the shape of the way your family lives: after maternity leave your wife returned to work full-time and you have taken the role of the home parent. You have accepted that you will never have the enjoyment of coaching your own children in their local sports. As a result of these proceedings, I accept that you have also caused enduring loss of two of the three sources of purpose and pleasure in your life and take that into account.
Delay
65You have had this case and the prospect of imprisonment hanging over you since July 2017. I accept that this five year period, where you have had to consider the real likelihood you will be sentenced to a term of imprisonment has been punitive. It has been a time rich with uncertainty, and I accept worry about your future and that of your family delivers an aspect of procedural punishment.
Hardship of sanction
66Your wife Anna gave oral evidence on the plea; she spoke about her return to work as a medical scientist in the Peter McCallum hospital, the demanding hours that that job demands of her and how you have committed yourself to the day in day out hands on care of your children.
67In his written submissions, your counsel Mr Hallowes SC, argued that a sentence of immediate imprisonment, while falling short of what is currently required for ‘exceptional circumstances’ in the exercise of mercy would nevertheless cause significant difficulties for your young family: your wife, the family’s breadwinner on account of you losing your job, would have to take on both roles for the family and would compromise her ability to earn an income. I accept that concern for your family’s welfare in these circumstances would make the burden of imprisonment more onerous upon you.
68I have also considered the current prison environment in Victoria, made harsher by the responses to the Covid- 19 pandemic.
Comparable cases
69I was taken to a range of what were said to be comparable sentences by your counsel : DPP v Hawkins[7], DPP v Wesley Ellis[8]; DPP v Lawrence[9], among others. No case is exactly like yours. I have considered the general sentencing landscape of sentencing for this offence. My task is to do individual justice.
[7][2017] VCC 1943.
[8][2016] VCC 1246.
[9][2021] VCC 1320
Purposes of sentencing
70General deterrence is the central pillar of this sentence. The prohibition on teachers having sexual relationships with their students is there because of the havoc it wreaks in the student’s life. It is antithetical to the teacher-student relationship. Teachers, and those with the care of young people, should register this sentence and hold it as a reminder that the courts take these breaches of trust very seriously.
71I consider the roles for rehabilitation and specific deterrence to be of little application in this sentence, given how your life has unfolded since these events. The need for just punishment and denunciation will, however, be expressed here.
Consideration
72While I have accepted that the need for specific deterrence in your case is very low, from a general deterrence point of view as I said at the hearing, and in rejecting your counsel submissions for a community corrections order, I conclude that nothing other than imprisonment is the appropriate sentence in this case.
73Given the timing, a suspended sentence is legally available to me, if I am satisfied that an order suspending a term of imprisonment is ‘desirable in all the circumstances of the case’.[10] I have reviewed the authorities about suspended sentences and general deterrence,[11] and thought about the community’s interest in your continued rehabilitation in the sentence that follows.
[10]s27 Sentencing Act 1991(as then in force).
[11]DPP v Carter [1998] 1VR 601; Buhagar & Heathcote.
74The decision whether to impose a sentence to be served immediately or to impose a sentence of suspended imprisonment is finely balanced. As I have said, the general deterrence note that this sentence has to strike is central; however, pulling powerfully in the other direction are the other matters that militate against a sentence to be served immediately in particular: the bestowal of the Warboyes discount (without which, I note, this sentence might have taken a different form), the punitive effect of the delay, the fundamentally life-altering collateral consequences for you as a result of what you did; the rehabilitation you have achieved over the last 18 years, and the hardship of a sentence of immediate imprisonment on you by reference to your families consequent difficulties.
75I have considered the decision of DPP v Buhagiar & Heathcote[12] where the Court of Appeal said the imposition of a suspended sentence is not an unconditional release, or a mere exercise in leniency, rather, it is an order made in the community’s interest and generally designed to prevent reoffending. Such a sentence still has the power to act as a general deterrent.[13] I note that a sentence in this form is not available to the prospective offender.
[12][1998] 4 VR 540.
[13][1998] 1 VR 601, 607-608.
76In the circumstances of this case, and not without difficulty, I have decided to impose a sentence of 19 months’ imprisonment. I order that this sentence be wholly suspended for a period of three years.
6 AAA
77Pursuant to s 6AAA of the Sentencing Act, I note that had you been found guilty after trial I would have imposed an immediate term of four years’ imprisonment with a non-parole period of 3 years.
Sex Offenders Registration Act 2004
78Sexual penetration of a 16 or 17 year old child under ‘care supervision or authority’ is a Class 1 offence pursuant to the Sex Offenders Registration Act 2004; registration is mandated for a reporting period of 15 years. I make that order.
Obligation to explain the sentence
79Mr Korczynski I’m obliged to explain what a suspended term of imprisonment means. This is a gaol sentence: it’s just that I don’t require you to serve it now. This sentence will sit, suspended, over you for three years and if you don’t commit any further offences (punishable by imprisonment) then your sentence would have been served. If you commit any other offence that is punishable by a term of imprisonment you will be brought back before me and absent very powerful reasons you will need to serve this time in gaol.
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