Director of Public Prosecutions v Scott
[2015] VCC 896
•28 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02118
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN SCOTT |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24-27 February, 3-7 November, 3-12 December 2014, 23 February 2015 | |
DATE OF SENTENCE: | 28 May 2015 | |
CASE MAY BE CITED AS: | DPP v Scott | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 896 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Guilty of three charges of committing an indecent act with a child aged 17 under offender’s care, supervision or authority – offender principal of complainant’s school – charged acts at middle range of seriousness – high moral culpability - low risk of reoffending – high need for deterrence – offences treated as a single class 2 offence pursuant to Sex Offenders Registration Act 2004
Legislation cited: s.34 Sex Offenders Registration Act 2004 (Vic.)
Cases cited:Boulton v R [2014] VSCA 342; Cole (a pseudonym) v R [2015] VSCA 44
Sentence: Convicted and released on a Community Correction Order for three years and registered on the Sex Offenders Register with a reporting period of 8 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Rogers S.C. | OPP |
| For the Accused | Mr P. Higham | Grigor Lawyers |
HER HONOUR:
1 Stephen Scott, on 15 December 2014, you were found guilty by a jury of three charges of committing an indecent act with a child aged 17 who was under your care, supervision or authority. The maximum penalty for such an offence is 5 years’ imprisonment.
2 Before the jury were 17 charges alleging sexual offences against the same person, Kayla Fernandez[1]. There was no dispute that you had engaged in all of this sexual activity with Ms Fernandez. The only issue the jury had to decide was whether at the time of each of the sexual acts, Ms Fernandez was under your care, supervision or authority. In 2012, you were the principal of the Christian school which Ms Fernandez attended as a student. She turned 17 in August of that year. You began an inappropriate, but non-sexual, relationship with Ms Fernandez in late 2012, and after the school became aware of this, your employment was suspended in December of that year. Communication continued between you and Ms Fernandez in phone calls and text messages, and the content of these became increasingly sexual at your instigation. On 22 January 2013, you resigned from your position as principal. The offences for which you were convicted took place on 9 February 2013. They were the first sexual acts that you had engaged in with Ms Fernandez.
[1] A pseudonym
3 To convict you of any of the alleged offences, the jury had to be satisfied beyond reasonable doubt that at the time each sexual act took place, you were in a position of care, supervision or authority over Ms Fernandez; because she was aged 17 years, consensual sexual activity was otherwise lawful. The chronology[2] provided by your counsel shows the number of hearings that were involved to define the law that was applicable in the circumstances of your case. It was explained to the jury that they had to be satisfied that at the time of the alleged offending, you exploited the influence that grew out of the former relationship of principal and student, and that influence was of such a nature, quality and extent that you had created a ‘new’ relationship of care, supervision or authority.
[2] Exhibit 1
4 By their verdicts of guilty on charges 1, 2 and 3, the jury were so satisfied for the sexual acts which took place on 9 February 2013, 18 days after you resigned as principal. By their verdicts of not guilty on the remaining charges, they were not so satisfied.
5 On 9 February 2013, Ms Fernandez informed you that she was going to see a movie with her sister. You went there also, and via text message, arranged with her to leave the cinema she was in during the movie, and meet you in a deserted cinema. This she did, and there you kissed her with an open mouth (charge 1), placed your hands on her thighs and then around to her bottom (charge 2), and placed your hands around her breasts (charge 3). Thus, all the offending occurred in a short space of time. The unchallenged evidence was that Ms Fernandez returned to the movie but sent a text to you that her sister had not noticed she had gone. You responded that she should return to you and she did, whereupon the same type of thing happened. This was uncharged but is part of the context in which the offending occurred, which I take into account for the sentence.
6 Objectively, the charged acts are at the lower end of a scale of seriousness for indecent acts. However, your crimes are made more serious by the following factors.
7 First, you seriously abused the level of trust the Fernandez family had in you, particularly after Mrs Fernandez met with and spoke to you in December 2012 and accepted your false assurance that you would no longer contact her daughter. In fact, you sent Ms Fernandez a text immediately after the meeting as she was being driven home by her mother.
8 Next, I am satisfied that you were the instigator of the non-sexual (and later, the sexual) relationship, and that you groomed Ms Fernandez in order to make it easier for you to commit the offences on 9 February. The grooming consisted of your conduct in continuing to communicate with her, including immediately after the meeting with her mother; by the sexual nature of your communications; by arranging to ‘bump into each other’ while shopping or at the movies; and by asking Ms Fernandez to write a letter to the school saying that you were not grooming her.
9 Next, the offences were planned and not opportunistic.
10 Next, you were aged 53, and there was 36 years difference in your ages.
11 Next, I am satisfied that the offences were committed purely for your own sexual gratification, albeit that you say you had a romantic connection to Ms Fernandez, and that at the time you paid no regard to the potential consequences for her.
12 I find that your moral culpability is high.
13 Taking these factors into consideration, I assess your offending as being towards the middle of the range rather than at the lowest level for indecent acts committed on a 17 year old under your care, supervision or authority.
14 I do accept that there was no challenge to Ms Fernandez’s evidence of the ongoing sexual activity and that your plea of not guilty was based on the sole challenge to the element of care, supervision or authority. Through your counsel on the plea you made a statement of apology to Ms Fernandez and her family, and you have expressed to others[3] your remorse for the impact your offending has had on Ms Fernandez, and her family. On the other hand, you continue to maintain that Ms Fernandez was not under your care, supervision or authority at any time after you resigned as principal[4].
[3] Exhibits 2, 3 and 4
[4] Exhibit 2
15 I received statements from Mr and Mrs Fernandez, from Ms Fernandez and from her older sister as to the impact of the offences[5]. I take into account only the relevant aspects of these statements in deciding the appropriate sentence. It is important to recognise that whatever the feeling of the family as to the whole period of admitted sexual activity, I can only take into account the effect of three offences committed on one day in February 2013. I accept that the family is distressed by the feeling of betrayal by you on that day, and all members speak of the way that Ms Fernandez changed from the person they knew as a result of those crimes. As Ms Fernandez put it, she was 17 when she ‘lost who [she] was’. She says she is working hard to recreate a future and ‘be reunited’ with herself. It is heartening to hear that there is some hope expressed in her words, and her family refers to how well she is doing in her studies now. I wish her well in her future.
[5] Exhibits A, B, C and D
16 I turn then to factors that I must take into account concerning you. I have been told of your personal history and circumstances, and I take these into account. These are summarised in the written outline of your counsel[6] and referred to in detail in the report of psychologist Mr Patrick Newton.[7]
[6] Exhibit 1
[7] Exhibit 2
17 You are now aged 56 years. As a result of your offending, you have separated from your wife, and you are unsure if reconciliation is possible, and you are estranged from your adult children. You have lost your registration as a teacher, and will probably never work in education again, which has been your career since 1984. You had a Christian upbringing and in 1986 you decided to teach in Christian schools. You still have your faith. You are currently renting your accommodation, and working as a furniture salesman. Your employer is apparently aware of this case, and is supportive of your rehabilitation, and you are supported also by your mother and sister, and by two ministers of religion[8]. Your father is deceased.
[8] Exhibits 3 and 4
18 In May 2013, the charges in this matter were filed. In July, you began attending Mr Newton and up to the date of his report in February 2015, you had attended 12 sessions with him. He has been counselling you to assist in managing symptoms of reactive depression and to address the issues raised by your offending. You have been prescribed medication for your depression by your doctor, and you reported having symptoms previously from about 2008 until 2012 due to dissatisfaction in your marriage and at work, and apparently these symptoms remitted during the time you were engaged in the relationship with Ms Fernandez. As at February 2015, you were still mildly depressed partly as a result of the charges.
19 Mr Newton assessed you as having no problems with impulse control or social deviancy, no indication of psychopathic or antisocial personality, and he was of the opinion that you represent a low risk of re-offending. The counselling has focused on your apparent ‘difficulty regarding interpersonal boundaries and lack of clarity about issues associated with professional propriety pertaining to relationships.’ I find that surprising to say the least; whatever the deficiency in your early teacher training, you are socially aware and intelligent, and that such boundaries existed must have been apparent to you from observation of other relationships over many years. In any event, it is positive that Mr Newton said that unlike many others, you were open to addressing the issues raised by your conduct.
20 I take into account that before this offending you had no convictions and so you are to be sentenced as a person of previous good character. I also have regard to the references provided by the two ministers of religion[9].
[9] ibid
21 As a result of the matters in your favour, I find that you do have favourable prospects of rehabilitation. Further, you will never be in a position to offend against Ms Fernandez, and it is unlikely that you will ever hold the position of teacher again. That makes it unlikely that you will reoffend in the same sort of way, and I accept that there is a low risk of that happening.
22 However, I must also take into account the need for general deterrence, which is of high importance in cases of sexual offending by persons in positions of care, supervision or authority. That means that by my sentence, I must seek to deter others in similar positions from committing offences. Also, the community demands that such criminal behaviour be denounced. My sentence also has as a purpose the need to deter you from re-offending, although I recognise that you are unlikely to do so.
23 Application has been made for the taking of an intimate forensic sample from you. Through your counsel, you have objected to this. After some consideration, I have decided that although you have no prior convictions and the offences occurred on one day, it is nevertheless in the interests of justice to order that a sample be taken, because of the seriousness of the offending for the reasons I have outlined. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if at the time of the request by police to take the saliva sample you do not consent, the law is that the sample that will then be taken will be a blood sample and the police may use reasonable force to enable that procedure to take place.
24 Because of the sentence I am imposing today, you will become a registrable sex offender. The charges of indecent act of a 17 year old child are class two offences, but as they arose in the same incident, they are to be treated as a single class two offence for this purpose. This means that you will be required within 7 days to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be subject to that Act for 8 years[10].
[10] Pursuant to section 34(1)(a)
25 My Associate will now give you a form telling you of your obligations and ask you to sign where indicated to show you have received this form.
26 MR HIGHAM: Your Honour, I will go work with that.
27 HER HONOUR: Yes, certainly. Thank you, Mr Higham.
28 As I have said, these are offences which require denunciation by the court. Your counsel submitted that this and other purposes the sentence must fulfil can be met by the imposition of a Community Correction Order. The prosecutor conceded that was an appropriate disposition, but submitted that it should be with conviction. I have received a pre-sentence report which indicated that you meet the criteria for suitability for such an order.
29 I have considered the principles outlined in the case of Boulton v R[11] and considered current sentencing practices.[12] I am of the view that in all the circumstances, I do have an alternative to a sentence of imprisonment, and a Community Correction Order without a period of imprisonment will satisfy the requirements of a just punishment. I do propose to enter a conviction on each of the offences.
[11] [2014] VSCA 342
[12] Just one example is Cole (a pseudonym) v R [2015] VSCA 44
30 If you could stand up, please, Mr Scott.
31 If you agree, I intend to release you on a Community Correction Order for three years, with the core conditions, and special conditions that you continue to attend for counselling and treatment on Mr Patrick Newton, psychologist, or his nominee for as long as he considers necessary; that you perform 250 hours of community work over the period of the order; and that you undergo assessment for, and participate in, the Sex Offender Advice and Treatment Services as directed.
32 I should just tell you, again, what the core conditions are, because it is some time since your assessment was undertaken. These are that you must not commit another offence for which you could be imprisoned during the period of the order; you must comply with any requirement that is directed by the Secretary to the Department of Justice or their delegate; you must report to and receive visits from the Secretary or their delegate; within two clear working days of today you must report to the Community Corrections Centre, the address of which will be on this form; you must let the community corrections officer know if you change your address or your employment; you must not leave Victoria without getting permission first from the Secretary or their delegate; and you must obey all lawful instructions and directions of the Secretary or their delegate.
33 Do you understand the proposed conditions?
34 PRISONER: Yes, I do.
35 HER HONOUR: Do you agree to being released on such an order?
36 PRISONER: Yes, I do.
37 HER HONOUR: Thank you, Mr Scott.
38 The sentence of the court is as follows.
39 On charges 1, 2 and 3, you are convicted and released on a Community Correction Order for three years on the core and special conditions as outlined.
40 Mr Scott, if you could come out of the dock now, and I will sign the order and then ask you to sign it. I have signed both pages. We will have a copy of that made available for you, Mr Scott, before you leave today. But you are now bound by the conditions of that order.
41 I should tell you, that if you breach the conditions of this order you will be subject to an offence and will be brought back before this court to be dealt with. The consequences are, of course, that I could be not just sentencing you for breaching the order, but also re-sentence you on the offences that I have dealt with today. And of course, imprisonment is an option.
42 If your circumstances change and you need to vary or suspend the order for a period of time, you may do that by making an application to the court. But the first step that you would take is seeking legal advice in order to do that. Yes, do you have any questions? All right. Thank you very much. Well, I thank counsel again for their long-running assistance in this matter.
43 MR HIGHAM: Thank you, Your Honour.
44 HER HONOUR: And I will stand down now then until 10.30.
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