Director of Public Prosecutions v Scott
[2020] VCC 629
•15 May 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-00528
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS SCOTT |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 May 2020 |
| DATE OF SENTENCE: | 15 May 2020 |
| CASE MAY BE CITED AS: | DPP v Scott |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 629 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – sexual penetration of a 16 or 17 year old child – plea of guilty
Legislation Cited: Crimes Act 1958, s 48(1).
Cases Cited: Boulton v The Queen [2014] VSCA 342; R v Verdins [2007] VSCA 102.
Sentence:6 months imprisonment. Community Corrections Order for a period of 30 months.
Section 6AAA declaration: 2 years and 10 months’ imprisonment with a
non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Singh | Ms S. Jankovic |
| For the Accused | Ms A. Beech | Mr T. Schocker |
HIS HONOUR:
1You have pleaded guilty to one representative charge of sexual penetration of a 16 or 17-year-old child under your care, supervision or authority. The maximum penalty for the offence is a term of imprisonment of 10 years. Tendered on the plea was a summary of prosecution opening wherein the circumstances of your offending was set out. I annexe a copy of that document to these sentencing reasons. It was Exhibit 1 on the plea.
2In brief the circumstances of your offending were as follows. You were the owner, operator and head coach of a cross-fit gymnasium in Langwarrin. You were approached by Ms Angelina Bremer[1], who spoke to you about her daughter Scarlett Bremer[2] enrolling in your gym. Scarlett was then 16, born on 13 May 1999, and she had been suffering from anorexia. It is, however, unclear what, if anything, was said to you about Scarlett's health issues during that first conversation. In any event Scarlett joined your gym in February 2016. She loved the gym and, it seems, excelled at training. On or around July 2017 you suggested that she complete an instructor's course and you offered her casual employment as an instructor in your gym. She readily accepted. After shadowing you for a period she began to run classes herself.
[1] Angelina Bremer is a pseudonym
[2] Scarlett Bremer is a pseudonym
3On an occasion between 1 March and 12 May 2017 whilst at the gym you and Ms Bremer were talking about sex. Later that evening when no one else was present at the gym you engaged in penile-vaginal penetration with Scarlett. This is Charge 1, which is a representative charge.
4On another occasion between 1 March and 12 May 2017 you and Scarlett were at your home address that you shared with your then partner, Sarah Peebles, to whom you had recently become engaged. Ms Peebles was not at home. You and Ms Bremer had penile-vaginal sex on your lounge room couch. You had left the back door open so that Ms Bremer could run away should your fiancée return home unexpectedly. This is a represented instance of sexual penetration of a 16 or 17-year-old child under care, supervision or authority.
5On another date, between approximately 3 and 14 April 2017, you picked up Ms Bremer in your company ute. This pick-up took place around the corner from Ms Bremer's home to avoid detection by her mother. You then drove to a location in Cranbourne West where you both fully undressed except for Ms Bremer's bra. Using a condom, you then again sexually penetrated Ms Bremer's vagina with your penis, a further represented instance of the offending.
6Sometime in early May of 2018 your victim disclosed your offending to a close friend. On 18 May 2018 she reported matters to police. You were interviewed in July 2018 and made a no comment record of interview as was of course your right.
7Tendered on the plea was a victim impact statement from Scarlett Bremer, Exhibit 2, and from her mother Angelina, Exhibit 3. Scarlett writes:
'I looked up to Nicholas more than anyone else in my whole life and I trusted him with everything at a time when I was really struggling mentally and socially and I really feel like you took advantage of that…I struggled mentally for a really long time with everything that happened and was eventually diagnosed with post-traumatic stress disorder with depression, severe anxiety and severe stress. I have still not emotionally, socially and mentally recovered from everything to this day'.
8Her mother Angelina tells of her guilt and sense of betrayal. She writes:
'I had placed my absolute faith in someone who stated he was a professional…He came across as a carer, a mentor and a professional who wanted to impart his knowledge and skills. To find out what was happening behind my back all while (sic) I was handing my daughter over to him, oblivious to what was happening. I'm still unable to come to terms with it. I'm the parent I should have realised'.
9I turn now to your personal circumstances. You were born on 14 October 1985 and were aged 31 at the time of this offending. You are now aged 34. You grew up in Dromana with one younger sister, Emily. Your parents struggled throughout your childhood years with both alcohol and substance abuse. They became addicted to heroin and filled your childhood home both with their addictive behaviours and with other heroin users. Your parents were present only in name. They failed to provide you and your sister with the care and security to which you were entitled. Your childhood was one of deprivation. You never had breakfast, your clothes went unwashed and you never had family holidays. Your parents sought to isolate you and your sister from the outside world and in consequence you felt looked down upon.
10Your parents impressed upon you that the family condition should be hidden from the outside world. Thus, you learnt from an early age to hide the truth from those who might enquire. You learnt in effect the toxic value of secrets. Your father was, in addition, both verbally and physically abusive towards you. This continued until you were of an age and a stature to resist him. Somehow the deprivation and family violence did not come to the attention of Child Protection. As you told your counsel: 'We knew we had a secret shame, we just did not know what it was'. I am told you now have little contact with your mother and none with your father.
11Nonetheless you were able to complete Year 12. You began to use all kinds of drugs and in 2005 were placed on an intensive corrections order for drugs offences, including trafficking both methamphetamine and MDMA. You completed the ICO and managed to turn your life around. You travelled overseas and upon your return decided to pursue a career in fitness. You qualified as an instructor and worked at a gym in Karingal from 2006 to 2009 before opening up your own gym, Rapid Fitness. This was where Ms Bremer trained and became an employee.
12Your sexual intimacy with your victim became known to your partner before the matter became subject to police investigation. Your infidelity ended that relationship. You have since started a new relationship with Ms Tanya Williams, although that has been put on hold along with all other aspects of your life until the conclusion of these proceedings. I was told on the plea that you had sold your gym business as part of your attempt to set your affairs in order prior to sentencing.
13Since your arrest on this charge you have lost your business, your reputation, your then relationship, many friendships and your professional regard. These are often the consequences of offending of this nature. You have continued to work as a start-up consultant to gyms and with your podcast. You have also continued to contribute in various areas of community and charitable work, particularly in the field of youth and adult mental health.
14Tendered on the plea as Exhibit 9NS was a collection of references from long-standing friends, past clients, business partners and your sister Emily and her husband. All speak unanimously of your positive attributes, your charity work, the supportive working environment that you created and your frankness as to your mental health struggles. Your sister Emily confirmed your family history noting the impact that it still has upon her and of how it had affected you.
15Since childhood it seems you have suffered from both low self-esteem and anxiety. Both I have no doubt were in reaction to your childhood experiences. Exhibit 8NS was a report from your GP, Dr Andrew Pearce, indicating that you had a long-standing, generalised anxiety disorder. You first disclosed your anxiety in 2012 and from that time to date you have been prescribed an array of antipsychotic, mood stabilising and sedative medication. Your anxiety has led to physical ailments and it becomes acute when you are confronted by challenges in your life.
16Exhibit 7NS was a report from your clinical counsellor Melissa Rowe. She has treated you since March 2018. Upon enquiry I was told that you first sought treatment from Ms Rowe when your infidelity with Ms Bremer was discovered by your then fiancée, and before the matter became a criminal investigation. Ms Rowe details your consistent attendance, your response to treatment and to your declining mental health since 2018, and the clinical support provided. You have attempted suicide on two occasions and your mental health remains fragile.
17On Monday of this week, that is 11 May 2020, you were admitted to hospital again in crisis. There is an ongoing need for treatment. Ms Rowe states you present as:
'An intelligent man who possesses good reflective capacity. When discussing the current offences Mr Scott is able to express empathy and deep regret and remorse. Mr Scott is very aware of the impact on all parties involved. Mr Scott’s mental health status is indicative of the distress he is aware (he) has not only caused himself, but also the victim, his family, relationships and the community.
18Exhibit 6NS was a psychological assessment report from Patrick Newton, forensic psychologist, dated 8 April 2020. Mr Newton set out your personal narrative in accord with the history provided by your learned counsel. Mr Newton found no evidence of psychopathology, personality disorder or sexual cognitive distortions and he assessed your intelligence as falling in the high end of the average range.
19You reported to Mr Newton that over time your personal interactions with your victim became more friendly and flirtatious and that you felt flattered by the attention. Whilst you had been aware of the age of consent, you had not at the time considered that Ms Bremer was under your care, supervision or authority. You were clear to Mr Newton that you now understood the basis for the charge and you accepted your guilt. Further, you accepted it was your responsibility for allowing the relationship with Ms Bremer to develop into one of physical intimacy and that it was not only morally wrong but also legally culpable to have done so.
20Mr Newton's opinion was that you were sexually attracted to adult women, that you had a clear sexual ethic and good insight into issues associated with the age of consent and the psychosexual development of young people. You expressed to Mr Newton a clear understanding of the impact of your behaviour, together with remorse and regret for your behaviour, and empathy for your victim.
21Psychometric testing and clinical judgment led Mr Newton to identify your risk of further sexual offending of in the low to moderate range. He explained: 'This is somewhat less than the risk posed by a typical sex offender undergoing sentence'. This opinion was not challenged by the prosecution. Mr Newton identified the need for mental health care, for offence-specific treatment and for alcohol education and counselling in light of your recent heightened use of alcohol as a coping mechanism.
22Significantly Mr Newton identified that:
‘The most salient aspect of Mr Scott’s mental state was his anxiety, this could be divided into an acute component related to his legal problems and other current stressors, and more chronic vulnerability to emotional difficulties.
23This was a reference, I understood, to a long-standing anxiety disorder. Mr Newton continues:
‘It is of course commonplace for an individual before the courts to experience a degree of stress and anxiety. In Mr Scott’s case he has suffered clinically significant anxiety since childhood and treatment of that condition has been complicated, despite good compliance with both medical treatment and counselling.’
24In addition to your long-standing generalised anxiety disorder, Mr Newton diagnosed you with an adjustment disorder with depressed mood. Noting your reported history of self-harm, Mr Newton stated:
'It is vital for Mr Scott to continue to access the mental health care he has been receiving. He will be at risk for a deterioration in his mental state in the time following sentence. He is likely to internalise the punitive aspects of sentencing harshly and will be at risk for some impulsive acts of self-harm. These issues would require active management at this time.’
Further:
I would anticipate that Mr Scott would experience a relatively difficult period of adjustment to the custodial environment. Not only is he naive to prison mores but he is also likely to experience an exacerbation of his pre-existing anxiety and depression. To this would be added the challenges posed by his offence type in the relatively restrictive circumstances of incarceration that this typically entails. In light of such issues there would likely be need for Mr Scott to receive relatively intense support to assist him to adjust to the custodial environment together with care at the time of his eventual release to ensure that he made the transition to the community in a positive manner'.
25It was accepted on the plea that this unchallenged opinion engaged propositions 5 and 6 of the well-known case of Verdins.
26I turn now to the submissions of counsel. In her concise, well-structured and helpful submissions, Ms Beech of counsel on your behalf conceded this was a serious offence enlivening sentencing purposes of general and specific deterrence and denunciation and for which an immediate term of imprisonment is ordinarily imposed.
27As to the nature and gravity of your offending, she submitted your offending fell in the mid-range of seriousness for this type of offence.
28She correctly identified that there was a substantial gap in age between yourself and the complainant your victim: you were nearly twice her age. That you were in a position of trust over and above that inherent in the offence by virtue of the meeting that you had had with the complainant's mother prior to the offending. When Ms Bremer came to your gym you were aware that she had some general health issues, although I accept you were not aware of any details of the nature and extent of her anorexia.
29You were aware of her age and of her physical appearance; but you were not aware of any additional vulnerabilities, at least at that early stage. Further, this was not an isolated, one-off event but rather three instances of penile-vaginal sexual penetration on three discrete and separate occasions.
30Features tending to lower the objective gravity of your offending, Ms Beech submitted, included that your relationship with Ms Bremer was that of an employer and employee. The attendant breach of trust that comes with that relationship was therefore less serious and less morally reprehensible than that of a teacher with a student or a priest with a parishioner or an older relative or guardian with a child in their care.
31She submitted the period of offending captured by the representative charge covered 10 weeks and comprised three instances of offending and that I should proceed on the basis that protection was used on each occasion. I do proceed on that basis. She submitted there were no aggravating features such as pain, humiliation or discomfort. She also fairly and realistically conceded there were no matters that reduced your moral culpability.
32Ms Beech urged upon me the importance of distinguishing the impact upon the victim of her illness from the impact upon her of your offending and I have striven to do so. She submitted that at the time of your offending you were not aware that the law regarded Ms Bremer as being under your care, supervision or authority, although you have come to appreciate the nature and purpose of the law that protects vulnerable young people from exploitation by those in a position of authority over them.
33Whilst ignorance of the law is of course not an excuse, Ms Beech submitted that your steps to avoid detection insofar as you were able in a relatively small town should be seen as you hiding your infidelity from your then partner rather than you seeking to hide your offending from the law.
34In mitigation of any such sentence, Ms Beech relied upon your plea of guilty entered at an early stage and bringing with it the benefit of saving the community the time and expense of a trial and of saving your victim the trauma of having to give evidence about intimate matters. It was a plea of value, the value of which should be recognised. I agree with that submission. She submitted that your plea was also an indication of your remorse.
35The reports of Mr Newton, Ms Rowe and the references provided all noted your consistent expressions of remorse and that I should conclude without hesitation that you were truly remorseful for your offending, and I do so.
36She also relied on your good character and antecedents. At the time of your offending you were 31. You had seemingly made great strides in leaving your childhood behind you and since your court appearance in 2005 you had effectively turned your life around. You had applied yourself to your rehabilitation, improving yourself and striving for professional excellence. You had not only achieved success professionally, but you had helped others and been a valued member of your community as the references tendered on your plea made plain. You were entitled, she submitted, to the full benefit of your character in mitigation of your offending. I agree with that submission.
37Your good character and your assessed risk of reoffending together provided a firm basis for your prospects of rehabilitation. I agree. Your diagnosed mental health issues not only mitigated any sentence by enlivening propositions 5 and 6 of Verdins, but also permitted moderation of both general and specific deterrence in your case. She submitted that a custodial sentence regime in the time of COVID-19 should mitigate sentence and presented practical obstacles for the treatment regime which you so clearly need. She reminded me of the case of Boulton. Her ultimate submission was that the combination of factors enabled a sentencing disposition that did not require you to lose your liberty today.
38Mr Singh on behalf of the prosecution in his succinct and fair submissions identified the relevant sentencing purposes of general and specific deterrence and denunciation. He accepted your plea was entered at an early opportunity and the value of which must be recognised by the Court. Whilst he accepted that propositions 5 and 6 of Verdins were engaged, he questioned whether authority permitted moderation of general and specific deterrence in light of your current mental health challenges. His ultimate submission was that the objective gravity of the offending required a term of imprisonment comprising a head sentence and a non-parole period.
39Mr Scott, you have pleaded guilty to a representative charge. That means that the charge to which you pleaded guilty is representative of two other instances of the same offence having been committed by you. You are not charged for those other instances of offending, nor do you fall to be sentenced for them. They do not aggravate the offending which is the subject of the representative charge, nor do they increase the maximum penalty for the offence to which you have pleaded guilty. A representative charge of course precludes any moderation of the sentence on the basis that the charged offending was an isolated incident. A representative charge enables the Court to consider the offending the subject of the charge in its full context.
40Mr Scott, sexual penetration of a 16 or 17-year-old child under your care, supervision or authority is a serious offence, as is clear by the maximum penalty of 10 years' imprisonment. In Victoria a person is legally a child until the age of 18. Parliament has decided that the age of consent for sexual activity should be fixed at 16. Parliament has also recognised that there is a need to protect young persons who are still children under the age of 18 from sexual exploitation by those who exercise care, supervision or authority over them and who may be able to use that care or that supervision or authority to obtain a consent from the child to sexual activity which is not a meaningful consent freely given.
41Scarlett Bremer clearly wanted to belong in the gym culture and to advance herself in the world of personal fitness. She looked up to you. I do not find that you knew the full extent of her vulnerabilities and her history of anorexia. The meeting with her mother, however, demonstrated the trust that was being placed in you over and above the authority attendant upon your role of employer towards an employee. That trust you breached by your offending, as your counsel Ms Beech accepted on your plea.
42Your victim found you attractive. You were flattered and you acted upon your desire. It is really that simple. You had recently got engaged. You created the opportunities to meet in secret. Your offending was not an isolated incident: it comprised three discrete acts of penetration. You were nearly twice Scarlett's age. You were her boss, not merely an upline manager or supervisor but the owner and operator of the gym at which she worked and to which she felt she belonged. In that role of boss you exercised authority over her and that should have led you to maintain the appropriate boundaries, no matter how flattered you may have felt.
43I accept that you sought to hide your infidelity rather than your offending, but you knew what you were doing was wrong. You did not think about the impact upon your victim but were driven solely by your need for sexual affirmation and gratification. The offending was serious and your moral responsibility for the offending is high.
44The sentencing process is not about revenge, it is not about retribution. It cannot give back to your victim that which she believes she may have lost. In sentencing you, I must have regard to a range of different factors. I must give effect to principles of both general and specific deterrence. That is, I must deter others from behaving as you did, and I must consider the need to deter you from any repeat of such behaviour. I must express the community's denunciation of your conduct and I must consider the need to protect the community from you. I shall promote, if possible, your rehabilitation. I take into account the effect your crime has had upon your victim and I have regard to the maximum penalty set by Parliament and to current sentencing practices. In short I have the task of trying to balance your personal circumstances with the circumstances of your offending. And I am required by law to pass no greater sentence than is necessary in all the circumstances of your case.
45The courts will do everything they can to protect children, and those who offend against children can expect to be punished if and when they come before the courts.
46In your case general deterrence, denunciation and just punishment are primary purposes for consideration. In accordance with authority I find that your current mental ill-health enables me to moderate general deterrence to some extent, as well as giving full application to principles 5 and 6 of Verdins. Your remorse, your developing insight and extracurial punishment, by that I mean the loss that you have suffered of your business, your reputation, your relationship, reduces in my view, although it does not eliminate, the need for specific deterrence. That is to deter you from any future repeat of this offending. You have, I find, as I told Ms Beech, excellent prospects for rehabilitation. You have reset your life once before and I am sure that you can do so again. You present as a low to moderate risk of reoffending. In my view the public does not need protection from you.
47I have had particular regard to the following matters: your early plea of guilty and the benefit it brings; your genuine remorse; the risk assessment of Patrick Newton; your prospects of rehabilitation; the particular burden of prison for you, given your mental health issues and the further risk of an at least temporary deterioration in your mental health in a custodial sentence; and to the uncertainties and restrictions current within the custodial environment in the present COVID-19 crisis. I have of course considered the case of Boulton.
48I find your offending is of a sufficient gravity to require an immediate term of imprisonment, but I am, however, able, in light of all the matters so ably advanced by your counsel, to pass a sentence that combines imprisonment with a community corrections order. I am satisfied that such a sentence can sufficiently address all relevant sentencing purposes and ensure your rehabilitation.
49On Charge 1 (sexual penetration of a 16 or 17-year-old child under your care, supervision or authority) you are sentenced to a term of imprisonment of six months and to a community corrections order of 30 months' duration.
50Now, there will be conditions of the community corrections order. The conditions will be supervision. There will be 200 hours' community work and I make the order pursuant to s 48CA(2) that any of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work.
51I direct there be a condition of you receiving offence-specific treatment and that hopefully will be a sex offender treatment program which enables you to understand why on this occasion you allowed desire to overcome your reason. I direct that you attend for treatment and assessment as directed for mental health, and likewise treatment and assessment for drug and alcohol abuse. I am also going to impose a condition of judicial monitoring.
52Pursuant to s.6AAA, had you not pleaded guilty you would have been sentenced to a total effective sentence of two years and 10 months with a non-parole period of 24 months.
53Pursuant to the Sex Offenders Registration Act 2004, you are now a registrable offender and subject to the provisions of the Act. The period of registration is 15 years and you are required to sign a document acknowledging that you have received a copy of your obligations. We will do that. There is also another document for you to sign.
54Now, Mr Scott, I know that at the moment it is perhaps difficult to concentrate, but I have to ask you this question. Do you agree to being placed on the community corrections order?
55OFFENDER: Yes, I do, Your Honour.
56HIS HONOUR: You do. All right. And you understand the conditions?
57OFFENDER: I do.
58HIS HONOUR: All right. Things will calm down, Mr Scott. I know Ms Beech will go and see you and explain matters to you. All right. Now, my associate Mr McKenzie - Ms Beech, you can go with Mr McKenzie - is going to come and bring you two documents to sign. One is the community corrections order, which I will sign. Ms Beech will explain the core conditions.
59I will say this now: Ms Beech will explain the core conditions, but effectively if you go into a 7‑Eleven and you steal a can of soda then you have committed an offence which is punishable by imprisonment, so that is one of the core conditions and you have breached them. The conditions for treatment I will set out. I am going to judicially monitor you and the first date that I have set is 15 December at 9.30 am.
60In relation to the Sex Offenders Registration order I don't know how often you go online, Mr Scott. What is important is that at a suitable time you have to go down to your local police station, you have to give your details, your address, your occupation, the registration of your car. But also crucially you have to provide every online identity that you use, every domain name, every avatar. If you game, every identity that you have.
61It is important that you understand that the Sex Offenders Registration requirements are intended to be an investigative tool and police take very seriously breaches of those obligations. So if you have a new online identity that you do not disclose, that will be committing an offence. Almost inevitably you are charged and when matters come back to court, the courts view them seriously. I am sure there will be no problem with that, all right, but before you sign it I wanted to explain that to you. Again I would be grateful to you, Ms Beech. I know you will run through the matters.
62Yes, all right, thank you.