R v Lovas

[2024] NSWDC 44

District Court

New South Wales

Medium Neutral Citation:

R v Lovas [2024] NSWDC 44

Hearing dates:

23 February 2024

Date of orders:

29 February 2024

Decision date:

29 February 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Scott Lovas is convicted.

2   I impose an aggregate sentence of 3 years with a non-parole period of 18 months to date from 20 September 2022. The non-parole period will expire on 19 March 2024 and the head sentence will expire on 19 September 2025.

3   The offender is to be released on parole on 19 March 2024.

Catchwords:

CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Scott Lovas (Offender)

Representation:

Counsel:
A Norrie (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Ross Hill & Associates (Offender)

File Number(s):

2019/228027

Publication restriction:

None

Judgment

1. Scott Lovas (the offender) appears for sentence after pleading guilty in the Local Court to four counts of sexual assault of a child between 10 and 16 years contrary to s 66C(3) Crimes Act 1900.

2. The maximum penalty for each offence is 10 years’ imprisonment.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

6. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

7. The complainant was 14 years of age at the time of the offences.

8. Between about April 2018 and September 2018 the offender was in a relationship with the complainant’s half-sister, KM. The offender resided with KM and her mother KI, in Victoria, from about May 2018 until about October 2018.

9. In late October 2018 the offender accompanied KI on a trip to Queensland to help her retrieve some furniture from storage in Rockhampton. In the course of that trip the offender and KI stayed over for two nights at the home of RM and her family in Ashley, New South Wales. When the offender first met RM he was told that she was 14 years of age.

10. Between about October 2018 and December 2018 the offender corresponded with RM on Facebook and Snapchat. By the end of December 2018, they considered themselves to be “dating”.

11. On or about 31 December 2018 the offender travelled from Victoria to Ashley. The complainant’s parents allowed the offender to stay at the house. They permitted the offender to sleep on the couch on weekdays and with the complainant on Friday and Saturday nights. The complainant shared a bedroom with a friend, KA at the time. There were two double beds in the complainant’s room, one on each side of the room.

12. The offender began to talk to the complainant about having sex and asked if she was a virgin. This occurred on several occasions, before the complainant agreed to have sex and she assured the offender that she was ready to do so.

13. On a Wednesday or Thursday evening in January 2019 when the other occupants of the house were out, the offender and the complainant had penile vaginal sexual intercourse using a condom on the complainant’s bed.

14. On another occasion, in about early January 2019 at about 3pm, when no one else was home, the offender asked for sex, at which time the complainant told him that she had to finish cleaning. They entered the complainant’s bedroom and the offender shut the door and locked it. He put the complainant on the bed and held her down. The offender took off the complainant’s clothes and got under the bed covers and removed his pants. They had penile vaginal sexual intercourse using a condom. The complainant did not speak to the offender for a few days after this offence.

15. On an evening in January a few weeks before school resumed, the complainant, the offender, KA and her family members were watching a movie. Everyone else retired for the night before the movie ended, leaving the offender and the complainant watching the movie. The offender rubbed the complainant’s leg and then rubbed her vagina. He then inserted his finger into her vagina. The complainant called out to KA but the bedroom door was closed.

16. The offender took off the complainant’s pants and undressed himself. He asked her if she wanted to use protection. The offender and the complainant had penile vaginal intercourse. The offender did not use a condom. The offender put his clothes back on and went to bed in the complainant’s room. The complainant slept in KA’s bed.

17. On or about 5 February 2019, the offender and the complainant ended the relationship and he left the house the following morning.

18. The complainant told a number of people about the offences.

19. On 13 March 2019 the offences were reported to the police through the complainant’s school.

20. A Court Attendance Notice was issued for the offender but was not served. On 23 July 2019 a warrant was issued for his arrest.

21. On 3 September 2019 the offender was spoken to by police in Victoria about the offences. Police from New South Wales conducted an electronically recorded interview with the offender at Sale Police Station, where he made full admissions.

22. In September 2022 the offender was contacted by New South Wales Police. At the time he was living in Queensland. On 20 September 2022, he attended Tweed Heads Police Station and was arrested on the outstanding warrants. He was taken into custody and has remained on remand for these offences since that date.

The Offender’s Case on Sentence

23. The offender tendered the following documents:

1. Reference of Michael Benn dated 22 February 2024;

2. Letter of Maryann Lovas dated 14 February 2024;

3. Psychological Assessment Report of Dr Paul Pusey dated 28 January 2024;

4. Letter of the offender, unsigned and undated; and

5. The following certificates:

1. Certificate of Completion for the Positive Lifestyle Program dated 7 February 2024;

2. Certificate of Achievement for completion of the Crossroads “What is the Bible?” program dated 16 November 2023;

3. 2023 Music Matters Concert, Area 2- Clarence Correctional Centre dated 11 August 2023;

4. Certificate of Achievement for completion of the Crossroads “Who is Jesus?” program dated 13 July 2023;

5. Certificate of Achievement for completion of the Alpha Program dated 18 April 2023;

6. Certificate of Completion for the Positive Lifestyle Program dated 2 March 2023; and

7. Certificate of Achievement for completion of the Crossroads “Who are You?” program dated 2 March 2023.

24. The offender was called to give evidence and cross-examined. He confirmed the content of the documentary evidence and gave evidence that he told the psychologist the truth. He expressed remorse and accepted responsibility for his actions. His evidence was not the subject of serious challenge and I accept his evidence.

25. The following is a precis of the evidence relied upon by the offender.

26. The offender is the middle of three children. He was raised in Victoria. His mother is deceased, and he does not have a relationship with either of his two siblings. The offender maintains close relationships with his father and stepmother, both of whom remain supportive of the offender and his rehabilitation. The offender was five years old when his mother was diagnosed with cancer. She died when he was 17 years old. Her illness dominated his childhood. He was very close to his mother and her death caused the offender to act out and spiral into a depressive state.

27. The offender was restless at school and disciplined for hitting people and being a distraction in class. He reports that his attention span and ability to concentrate are poor.

28. The offender was sexually assaulted at age 14 by a teacher at his high school. The offender attended school to avoid the pain of his mother’s illness and after the sexual assault he felt isolated, distrustful of others and worthless as a person.

29. The offender reported that he left school to start work in year 10 due to his mother’s illness and his experiences of bullying. He has had a number of jobs in the fast food industry and he worked for Telstra for 10 months in a call centre. He commenced a Diploma in Sport Development before transferring to a Certificate IV in Building. His studies were interrupted when he was incarcerated in Victoria. He is presently continuing his Certificate IV through Open Colleges Australia.

30. The offender admitted to Dr Pusey that at the time of his offending he was using illicit substances and consuming alcohol. He commenced using substances and consuming alcohol at age 16 to cope with his mother’s illness and bullying at school. He has been abstinent from drugs since April 2019 following the death of a friend in a motor vehicle accident.

31. The offender told Dr Pusey that he socialised with younger people in his early adult years because those peers made him feel valued. He had a lot of friends, a lot of social media contacts and went to a lot of parties. His sexual encounters were with girls from the groups that he was associating with. He had a problematic relationship with drugs and alcohol at the time of the offences. He experienced symptoms of anxiety and depression as well as suicidal thoughts and has attempted self-harm on a number of occasions.

32. Whilst in custody in Victoria, he was diagnosed with Borderline Personality Disorder but did not receive any treatment or medical follow-up.

33. Following his release from custody in Victoria the offender ceased association with younger people and limited his social media use.

34. Prior to his arrest for these matters, the offender was living in Hervey Bay with his fiancée of two years. His incarceration has strained their relationship, but she remains in contact with him.

35. His daughter with KM is now three years old and he wants to be part of her life in the future.

36. While in custody the offender has been commended by Mr Michael Benn, a Textiles Trade Instructor at Clarence Correctional Centre, for his work ethic and leadership abilities. He has also completed several programs during his time in custody.

37. The offender expressed remorse to Dr Pusey and in his letter to the Court and acknowledges the consequences of his actions.

38. Dr Pusey opined that the offender was suffering from Major Depressive Disorder and possibly comorbid Posttraumatic Stress Disorder at the time of the offences. He was able to recognise the contribution of his undiagnosed mental illness to the offences.

39. On the application of risk assessment tools, the offender presents some risk of recidivism. However, Dr Pusey opines that with appropriate treatment that the offender’s risk of recidivism can be significantly reduced.

Consideration

Objective seriousness

40. There are a number of features of the offending conduct that are relevant to each offence. They occurred in the context of a sexual relationship that occurred over about one month. Consent to sexual activity is not a relevant consideration in this sentencing exercise as a result of the complainant’s age. The complainant was 14 and the offender was 19 at the time of the offences.

41. Sequence 1 involved penile/vaginal intercourse using a condom and there was no risk of unwanted pregnancy.

42. Sequence 5 involved penile/vaginal intercourse using a condom and there was no risk of unwanted pregnancy. It was an agreed fact that there was some degree of force used to hold the complainant down in the commission of the offence, but I have not taken that into account other than as a description of what occurred.

43. Sequence 6 involved digital penetration of the complainant’s vagina for a short period. Sequence 7 involved penile/vaginal intercourse without a condom. The complainant experienced some pain during intercourse.

44. The offender had a disrupted upbringing marred by the terminal illness of his mother, sexual abuse, bullying, mental health pathology arising from these stressors and resulting alcohol and substance use. I am satisfied that his moral culpability for the offences is reduced.

45. I have taken into account the maximum penalty for the offences.

Deterrence

46. General deterrence is of great importance when sentencing offenders for sexual offences against children.

47. General deterrence can be afforded less weight when an offender has a mental condition because they are not an appropriate person to be made an example of. In this case there is a causal connection between the offender’s mental condition and the offending conduct. In the context of his childhood stressors that led to his mental condition, his contact with underage peers made him feel socially accepted and valued. His major depressive disorder impacted his ability to make age appropriate decisions. I am satisfied that his liaison with underage sexual partners arose from his cognitive and emotional immaturity stemming from his poor childhood circumstances. In all of the circumstances, it is appropriate to afford general deterrence, retribution and denunciation less weight and to impose a sentence that promotes his rehabilitation.

48. There is some need for specific deterrence in this case, but it is reduced for the reasons that follow. The offender made full admissions and accepted responsibility for his actions. He displays insight into what led him to a period of offending, in which the current offences were committed. I accept that he has prosocial plans for the future and is willing to accept appropriate treatment. Whilst he has convictions for sexual offences in the past, all of his offences occurred within a six month period and he had not been before the Court for any of the offences in that period.

Aggravating factors

49. The offences were committed in the complainant’s home: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

50. The offender did not have a record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). At the time of the offences, the offender did not have any prior criminal convictions. He had committed other offences for which he was subsequently dealt with in Victoria. By reason of his prior offending he was not a person of good character.

51. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has a good work history and is a valued worker in prison. The offender has good insight into the circumstances that led to his offending and has taken steps since his release in Victoria to reduce his risk of recidivism. I note that the offender has participated in sex offender treatment in Victoria and will be subjected to close supervision on the sex offender register in Victoria and New South Wales. I am satisfied that he is genuinely interested in seeking mental health treatment on his release and working through his childhood trauma. If he can do that, his prospects of rehabilitation are good.

52. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has always accepted responsibility for his actions and recognised from an early stage that what he did was wrong. He made full admissions. He has expressed remorse to numerous people involved in preparing for the sentence proceedings and to the Court. I accept that he is genuinely contrite.

53. There has been some delay incurred in the finalisation of these offences, mainly because the offender was in custody in Victoria and then lived in Queensland. The offender co-operated with the authorities in this matter by making full admissions and presenting himself to the police in New South Wales so that the outstanding warrants for his arrest could be executed. He had not been served with the Court Attendance Notices and he had not avoided service of them for these offences. He has taken significant steps to facilitate the course of justice.

54. I have taken into account that if these offences had been dealt with at the same time as the Victorian offences that there would have been some accumulation of the penalties.

55. The offender has been in custody for these offences since the date of his arrest on 20 September 2022 and the sentence imposed will be backdated to that date.

56. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions may continue to be imposed for some time into the future. I am satisfied that these restrictions and the offender’s mental condition have made his time in custody more onerous.

Penalty

57. Scott Lovas is convicted.

58. I have taken into account the Victim Impact Statement of the complainant that was read aloud by her in Court.

59. I make a finding of special circumstances. This is the first significant period in adult custody. He has a mental condition requiring treatment that justifies a longer period of supervision on parole.

60. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed had separate sentences been imposed, after allowing for the discount for the plea of guilty, are:

• Sequence 1 – 2 years;

• Sequence 5 – 2 years and 3 months;

• Sequence 6 – 18 months;

• Sequence 7 – 2 years and 3 months.

61. I impose an aggregate sentence of 3 years with a non-parole period of 18 months to date from 20 September 2022. The non-parole period will expire on 19 March 2024 and the head sentence will expire on 19 September 2025.

62. The offender is to be released on parole on 19 March 2024.

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Decision last updated: 29 February 2024