R v Scholten

[2020] NSWDC 866

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Scholten [2020] NSWDC 866

Hearing dates:

14 September 2020; 15 September 2020; 25 November 2020; 9 December 2020

Date of orders:

9 December 2020

Decision date:

09 December 2020

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Full time custodial sentence imposed. Decision at [54]

Catchwords:

CRIME – sentence – Indecent Assault (under 16 years) – s61M(2) – late plea

Legislation Cited:

Crimes Act 1900 (NSW) s 61M

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A

Cases Cited:

Markarianv R [2005] HCA 25

Category:

Sentence

Parties:

Regina (ODPP)
Matthew Scholten (Offender)

Representation:

Solicitors:
Ms A Gunn (ODPP)
Ms McKensey (Offender)

File Number(s):

2019/16488

Publication restriction:

Statutory non-publication order regarding complainants.

Judgment

1. Matthew Scholten, hereafter referred to as ‘the Offender’, appears today for sentence, having pleaded guilty to a single charge on an indictment, namely, count 2, indecent assault upon a person under the age of 16 years. That offence is a breach of s 61M(2) of the Crimes Act 1900 (NSW), which provides a maximum penalty of 10 years’ imprisonment, and a standard non-parole period of 8 years’ imprisonment.

2. Mr Scholten was born on 2 October 1969. He was committed for trial from the Local Court on 8 October 2019, after pleas of not guilty were entered to both sequences 1 and 2. Upon arraignment, on 14 November 2019, a trial date was set for 8 June 2020. That trial was vacated, and a fresh date of 14 September 2020 was allocated. On 14 September 2020 the Offender pleaded guilty to count 2, on version 5.2 of the indictment, in satisfaction of both counts on the indictment. The matter was then adjourned for sentence on 15 September 2020.

3. The matter next came before me on 25 November 2020, at which time Mr Stitz of counsel appeared for the Offender. Mr Stitz and his instructing solicitor became conflicted and both sought leave to withdraw. Leave was granted, and Ms McKensey now appears for the Offender.   

4. The offending occurred in the period 6 July 2018 through 23 July 2018.The Offender has been bail refused in respect of this matter since 12 March 2020. He was arrested 16 January 2019.

5. He had been serving a period of imprisonment for several drive whilst disqualified charges. He was sentenced for those matters, on 10 February 2020, to an aggregate period of imprisonment for 12 months, with a non-parole period of 8 months. His earliest release date was 6 October 2020. Since 6 October 2020, the Offender has been in custody solely in relation to this matter.

6. An issue arose as to the appropriate commencement date. It was submitted by the Crown that it ought to be 6 October 2020, the date upon which he commenced serving time in custody solely referable to this charge. It was submitted on behalf of the Offender that some of the time from 12 March 2020 ought to be taken into account, in order to avoid offending principles of totality. After discussions with Ms McKensey, it was agreed that a commencement date of 1 August 2020 would take into account those considerations.

7. The Statement of Agreed Facts provides as follows in relation to the charge. The victim is BA, who was aged 9 at the time of offending. She lives with her mother, who today read a victim impact statement on behalf of her daughter.

8. At the time of the offence, the victim BA was 9 years of age. In May 2018, the Offender’s son moved into the garage of the victim’s mother, along with his girlfriend, and his younger sister, SS, who came to the house to visit. The victim and the Offender’s daughter became good friends.

9. The Offender’s aunt lives in a house at Cooranbong. The Offender lived at the house with his aunt, and usually slept in a caravan in the rear yard that he shared with another friend of the Offender, who also lived at the property.

10. On regular occasions, SS and the Offender would sleep in the front room of the house. In the June/July 2018 school holidays, the victim asked her mother if she could have a sleepover with SS. Her mother agreed, and the sleepover was arranged for that night. The victim and SS were to stay with the Offender for the evening, in the front room of the Offender’s aunt’s house.

11. During the day the victim had been wearing a pair of black tracksuit pants and a long sleeved blue shirt. Because of the hot weather, the Offender took the victim and SS to Target and purchased a singlet and a pair of shorts for the victim. The victim changed into the clothes purchased for her by the Offender. The Offender also purchased the victim and SS toys of their choosing. They then went to a park so the children could fly kites.

12. In the front room of the house there was a double bed which faced a television. After dinner, the Offender and the children were lying on the bed watching a movie. The victim was wearing shorts and a singlet. The Offender was lying between the children because SS wanted the Offender to sleep in the bed with her.

13. SS fell asleep, and about 10 minutes later the Offender slid his hand down the victim’s shorts, and rubbed her vagina underneath her clothing on her bare skin for a couple of minutes. The victim told the Offender to stop 3 or 4 times, however, the Offender continued to do what he was doing.

14. The victim, understandably, felt very uncomfortable. At this time the victim got up from the bed, went to the bathroom, and changed into her long pants. She returned to the bedroom and slept on a camping bed, which had been set up in the room. I pause in the Agreed Facts to note here that the victim, BA, demonstrated a level of maturity far beyond her years.

15. The day after the sleepover the victim told the Offender’s aunt, “When we were going to bed we were lying on the bed in undies and shirt and Matt touched me”. The Offender’s aunt responded, “What do you mean?”. The victim explained, “He touched me there”, and looked to her vagina. The Offender’s aunt asked, “Are you sure Matt wasn’t trying to tickle you?”. The victim replied, “No. He wasn’t tickling”. The victim told the Offender’s aunt that she then got up and put pyjama pants on.

16. The following day the Offender’s aunt relayed to her partner what the victim told her. A few days later he confronted the Offender. The Offender replied, “That's a load of shit”. Later, BA’s mother and her partner were notified. At this time the victim was asked by her parents “Has Matt touched you?”. The victim replied that he had. However, BA's mother did not contact police out of fear that the children would be removed from her care. In December 2018 BA's mother contacted the police to report the offending. Those are the Agreed Facts.

17. The Offender has a lengthy criminal history comprising a number of serious driving offences, drug offences, and dishonesty offences. This current offence is the first of its type. The Offender’s lengthy criminal history is such that it disentitles him to a finding of good character, as well as any leniency which may flow from such a finding. It does not otherwise aggravate the seriousness of the offending.

18. The Offender relies upon a report by Kris North, psychologist, who assessed him via audio-visual link on 11 November 2020. He gave a history of a relatively late onset of drug use, precipitated by major life stressors, and symptoms of depression. He identified an escalation in offending since commencing drugs, and reported that he had lost his family and control over his life in recent years.

19. It was noted that his drug use was identified as a contributing factor in the index offending, and likely resulted in reduced impulse control at the time of the offending. Without evidence from the Offender, I reject that opinion.

20. Ms McKensey, do you wish to be heard against that rejection?

21. MCKENSEY: No, I don’t, your Honour. The only thing I will add at this stage, your Honour, and I apologise for not picking it up earlier, is just in relation to the commencement date; just to re-agitate that. My maths is terrible on the fly, and I apologise. My counting of it is that it should 7 months between the 2 dates that were in issue. 6 months and 28 days. The halfway point, I think, would be 25 June 2020.

22. HIS HONOUR: I beg your pardon.

23. MCKENSEY: Not at all, your Honour. I haven’t assisted your Honour in that regard. I apologise.

24. HIS HONOUR: Returning to my remarks on sentence, following a more precise calculation of commencement, based on the rationale I previously explained, it was determined that the commencement date would be 25 June 2020.

25. Returning to the report by the psychologist, the Offender was assessed as being in the low range for sexual offending, according to the Static-99R and STABLE-2007 testing. It was also noted that he had accepted responsibility, and expressed remorse for his offending. Without evidence from the Offender, I am not inclined to accept out-of-Court statements as to that matter, and I decline to find remorse in the statutory sense.

26. The Offender told Mr North that he had claimed to have no memory of the incident. He said that he’d used methamphetamine on the day of the offending. He gave a childhood history as being relatively unstable, with the family moving around. He also attended a number of schools. He was first married in 1988, and has 4 children from that relationship. The Offender separated from that relationship in 2008.

27. In 2008 he commenced another relationship, which lasted until 2012, and had one child from that union. He was introduced to drugs in 2008 by work colleagues, which became problematic. The Offender reported to the psychologist a history of learning issues, including poor concentration and distractibility, as well as dyslexia and ADHD. Again, in the absence of evidence, I am disinclined to accept out-of-Court statements as to those matters.

28. The psychologist embarked upon the assessment of depression, using inventory and other diagnostic tools that are ordinarily accessed and used by psychiatrists. Nevertheless, he was found to be in the mild range for depression, and the normal range for stress and anxiety.

29. A number of recommendations were made by Mr North as to treatment, which would be directed towards the substance abuse history, together with the sexual offending. I recommend that the Offender follow up on those recommendations upon his release from custody.

30. The psychologist diagnosed a stimulant use disorder in remission, as the Offender is in a controlled environment. In light of the need for treatment and rehabilitation in the community, I find special circumstances. I accept the opinion of the psychologist, and consider the risk of re-offending to be low. In relation to the prospects of successful rehabilitation, my view is that, untested, they can only be assessed as guarded.

31. Prior to imposing any sentence of imprisonment, it is necessary for the Court to consider the purposes for which a sentence may be imposed. They are set out at s 3A of the Crimes (Sentencing Procedure) Act. The first is to ensure that the Offender is adequately punished for the offence. That is, that the sentence imposed reflects the criminality involved.

32. In that regard, I was submitted on behalf of the Crown that the aggravating factors of the offending taking place in the presence of another child, the offending taking place in the home of the victim, or any other person, and the abuse of trust or authority are matters which inform the assessment of objective seriousness.

33. I am cautious in relation to making a finding about the presence of another child, as there is no evidence that the other child, SS, was aware of the offending. Nevertheless, I accept that the other two aggravating factors exist.

34. That’s correct, Madam Crown, isn’t it? There’s no suggestion that the other girl was aware of it?

35. MCKENSEY: No, your Honour. She was asleep in the same bed.

36. MCKENSEY: Just - sorry, your Honour, in relation to the other aggravating feature of it being in the child’s home, it wasn’t - the offence didn’t occur in the victim’s home.

37. HIS HONOUR: No. I said “or any other person”.

38. MCKENSEY: Yes.

39. HIS HONOUR: It was the home. It was the place where‑‑

40. MCKENSEY: It was still a home.

41. HIS HONOUR: Yes. It was a place where the victim was staying at the time, and a place where she is entitled to feel safe and secure. That safety and security was breached by your client’s conduct.

42. MCKENSEY: I accept that, your Honour.

43. HIS HONOUR: In terms of objective seriousness, the Crown submitted that the offending falls above the mid-range for the following reasons:

1. at the time of the offending the victim was just 9 years of age, in relation to an offence which encapsulates victims up to the age of 16;

2. the Offender was 48 years of age;

3. the Offender had the care and control of the victim, having agreed to take her to the sleepover and put the victim in a position of vulnerability, and the Offender in a position of trust;

4. the offending was also serious in that it was skin on skin offending, and the action involved rubbing which lasted for a period of about two minutes; and

5. the victim told the Offender to stop on 3 or 4 occasions, and he ignored those requests.

44. It was submitted by Ms McKensey for the Offender that the offending fell in the mid-range. I prefer the submission of the Crown, and find the offending falls just above the mid-range for offending of this type.

45. Accordingly, returning to the purposes for sentencing, it is necessary that the sentence reflects the criminality, and is adequate punishment for that offending. It is also necessary to deter others from engaging in this type of offending. Adults engaging in sexual conduct with children is something which is abhorrent, and must be deterred.

46. Whilst there is no suggestion here of any significant risk of reoffending by the Offender, the sentence must also include an element of specific deterrence. Protection of the community is also a purpose for sentencing under s 3A.

47. Rehabilitation of the Offender is a further consideration. In light of the opinion of Kris North, I accept that it is a purpose which is enlivened in the present matter. Accountability by the Offender for his actions is also necessary. Denunciation of the abhorrent conduct of the Offender is also a purpose for sentencing which exists in this case.

48. Recognition of the harm done to the young victim and to the community is also necessary in sentencing this Offender. In that regard, I have listened carefully to and have taken into account the Victim Impact Statement, read by the victim’s mother in Court today.

49. This is an offence in relation to which a standard non-parole period applies. That is a matter to be taken into account, as is the maximum sentence. They are both guide posts to a sentencing judge. That standard non-parole period ordinarily would apply to an offence found within the middle range of objective seriousness for such an offence, taking into account only objective factors.

50. Ultimately, though, the standard non-parole period is but a factor to be taken into account in the exercise, together with the objective and subjective matters, which are considered in synthesis in accordance with what McHugh J said in Markarianv R [2005] HCA 25. The fact that the offending is found to be at or slightly above the mid-range does not mandate that the standard non-parole period is to be applied.

51. The Offender is entitled to a discount of 5% on account of the guilty plea. I am cognizant of the need to sentence the Offender based upon the current sentencing trends, rather than those which prevailed when the offending occurred in 2018. I have also had regard to the trauma of sexual abuse on children, as demonstrated by the Victim Impact Statement.

52. Having considered all possible alternatives to imprisonment, I find that imprisonment, by way of full time custody, is the only appropriate and reasonable sentencing option.

53. Please stand, Mr Scholten.

54. Matthew Scholten, you are convicted of indecent assault of a person under the age of 16 years in breach of s 61M(2) of the Crimes Act 1900 (NSW). In respect of that conviction, you are sentenced to a term of imprisonment after a discount of 5% comprising a non-parole period of 2 years, commencing 25 June 2020, and expiring on 24 June 2022. You are further sentenced to a balance of term of 1 year, which therefore in total comprises a head sentence of 3 years, expiring on 24 June 2023.

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NOTE:

A. These remarks on sentence were revised without access to the Court File.

I certify that the previous 54 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.

J Bailey

Associate

Amendments

09 March 2021 - [8] edited to remove name from Agreed Facts (not victim)

Decision last updated: 09 March 2021