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R v Scholz

R v Scholz

Case [2023] NSWDC 222 23 June 2023

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Mens Rea & Intention

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Scholz [2023] NSWDC 222
Hearing dates: 16, 23 June 2023
Date of orders: 23 June 2023
Decision date: 23 June 2023
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 151 - 152

Catchwords:
CRIMINAL LAW – sentencing – sexual offences – sexual touching of child – aggravated sexual touching – aggravated sexual assault - two victims – offender occupied senior leadership position within a Brigade of the Rural Fire Service of NSW – significance of ‘grooming’ and ‘exploitation’ as factors – whether prior good character and absence of prior convictions can be taken into account as mitigating factors - significance of offender having Post-Traumatic Stress Disorder

Legislation Cited:
Crimes Act 1900 (NSW) ss 61I, 61J, 61KD, 66DB, 66EB, 66EC
Crimes (Sentencing Procedure)Act 1999 (NSW) ss 3A, 5, 21A, 25AA, 46

Cases Cited:
Bhatia v The Queen [2023] NSWCCA 12
Cheungv The Queen (2001) 209 CLR 1
DH v R [2022] NSWCCA 200
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
EG v R [2015] NSWCCA 21
Geagea v R [2020] NSWCCA 350
Muldrock v The Queen (2011) 244 CLR 120
PC v R [2022] NSWCCA 107
R v BA [2014] NSWCCA 148
R v Lau [2022] NSWCCA 131
R v Nelson [2016] NSWCCA 130
R vOlbrich (1999) 199 CLR 270
R v Youkhana [2004] NSWCCA 412
RH v R [2019] NSWCCA 64
Savvasv The Queen (1995) 183 CLR 1
Walsh v R [2015] NSWCCA 83

Texts Cited:
S Odgers Sentence (6th ed), Longueville Media

Category: Sentence
Parties: Office of the Director of Public Prosecutions (ODPP)
Mr M Scholz (offender)
Representation:
Counsel:
Ms M Heywood for the Crown
Mr J Tyler-Stott for the offender
Solicitors:
ODPP
Sydney Criminal Lawyers for the offender

File Number(s): 2021/00148301
Publication restriction: Non-publication of the victims’, complainant’s and children involved in the proceedings names

SENTENCING REMARKS

Introduction

On 15 March 2023, a jury found Michael Scholz, the offender, guilty of multiple sexual offences involving two victims following a trial presided over by me at Parramatta. The names of the victims will be anonymised.
The offences the subject of these verdicts of guilt, and the maximum penalties and applicable statutory non-parole periods are as follows:

Count

The offence

Maximum penalty

SNPP?

1

Between 1 March 2021 and 3 April 2021, at Wilberforce in the State of New South Wales, did intentionally touch sexually MC, a child then aged between 10 & 16, namely 15 years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW)

10 years’ imprisonment

N/A

2

Between 1 March 2021 and 3 April 2021, at Wilberforce in the State of New South Wales, did have sexual intercourse with MC, without the consent of MC, knowing that she was not consenting, when MC was a person under the age of 16 years, namely 15 years, contrary to s 61J(1) of the Crimes Act 1900 (NSW).

20 years’ imprisonment

10 years’ imprisonment

3

Between 27 March 2021 and 26…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Scholz

Details

AGLC: R v Scholz [2023] NSWDC 222
Case: [2023] NSWDC 222
Decision Date: 23 June 2023

CaseChat Overview and Summary

The case of R v Scholz involved the sentencing of an individual who had been found guilty of multiple sexual offences against two victims. The offender, who held a senior leadership position within a Brigade of the Rural Fire Service of NSW, was convicted of sexual touching of a child, aggravated sexual touching, and aggravated sexual assault. The dispute before the court centred on the appropriate sentence to be imposed, considering the nature of the offences and the offender's background. The case was heard in the NSW Supreme Court.

The legal issues that the court had to address included the significance of the offender's position of trust and the manner in which the offences were committed, particularly through grooming and exploitation. Additionally, the court needed to determine whether the offender's prior good character and absence of prior convictions could be taken into account as mitigating factors. The offender also claimed to suffer from Post-Traumatic Stress Disorder, which was argued to have impacted their actions. The court had to weigh these factors against the gravity of the offences and the harm caused to the victims.

In delivering the judgment, the court found that the offences were of a serious nature, with the offender having abused their position of trust to commit the offences. The court emphasised the importance of holding individuals in positions of authority to a higher standard. The offender's prior good character and lack of prior convictions were considered but were ultimately not sufficient to significantly mitigate the severity of the offences. The court also acknowledged the offender's PTSD but found it did not excuse their actions. The court sentenced the offender to a term of imprisonment, with specific consideration given to the need for denunciation, deterrence, and the protection of the community.

The final orders of the court, as detailed in paragraphs 151 and 152, involved the imposition of a custodial sentence and other ancillary orders, including registration as a sex offender and a prohibition on contact with the victims. The court also made orders for the offender to undergo treatment for their PTSD, as part of their rehabilitation.

Orders

Orders of the court

See paragraph 151 - 152

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Scholz [2023] NSWDC 222

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 19 of 19 shown

Bhatia v R
[2023] NSWCCA 12 Para 113

…The causal connection was emphasised by Beech-Jones CJ at CL (N Adams J agreeing) in Bhatia v The Queen [2023] NSWCCA 12 (“ Bhatia ”) at [13]-[15]. By its written submissions (MFI 1, paragraphs 90-93) the Crown initially pointed to passages of the evidence of the victims’ mothers to support the causal connection. T…
DH v R
[2022] NSWCCA 200 Para 34

…articular reference to where it falls in relation to a mid-range notwithstanding that most of the offences carry a standard non-parole period: DH v R [2022] NSWCCA 200.…
R v Lau
[2022] NSWCCA 131 Para 35

…ed by the Crown as including: the age differential between the offender and the victims; the insignificance of the duration of the offences ( R v Lau [2022] NSWCCA 131 at [82]. I accept those matters.…
PC v R
[2022] NSWCCA 107 Para 66

…erence between the factor of a breach of trust and circumstance of offending being under the offender’s authority was recently reviewed in PC v R [2022] NSWCCA 107 at [73]-[76]. The offender’s counsel conceded that for counts 3-6 and 8, consistently with the jury’s verdicts, the offender abused a position of trust,…
Geagea v R
[2020] NSWCCA 350

…e Queen (2001) 209 CLR 1 DH v R [2022] NSWCCA 200 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 EG v R [2015] NSWCCA 21 Geagea v R [2020] NSWCCA 350 Muldrock v The Queen (2011) 244 CLR 120 PC v R [2022] NSWCCA 107 R v BA [2014] NSWCCA 148 R v Lau [2022] NSWCCA 131 R v Nelson [2016] NSWCCA 130 R v Olbrich (1999) 199 CLR 2…
RH v R
[2019] NSWCCA 64

…8 R v Lau [2022] NSWCCA 131 R v Nelson [2016] NSWCCA 130 R v Olbrich (1999) 199 CLR 270 R v Youkhana [2004] NSWCCA 412 RH v R [2019] NSWCCA 64 Savvas v The Queen (1995) 183 CLR 1 Walsh v R [2015] NSWCCA 83 Texts Cited: S Odgers Sentence (6th ed), Longueville Media Category: Sentence Parties: Office of the Director…
DAVIES v R
[2019] NSWCCA 45 Para 67

…tance of the offending occurring ‘under the offender’s authority’ was not an element of the offence. Ms Crown cited the authority of Davies v R [2019] NSWCCA 45. The offender did not dispute that submission and I accept it.…
Mol v R
[2017] NSWCCA 76 Para 68

…i.e. 1, the alternative to count 7 and 10 -14 (incl), the facts did not engage this aggravating factor, citing observations by Fullerton J in Mol v R [2017] NSWCCA 76 at [117].…
R v Nelson
[2016] NSWCCA 130 Para 45

…. As has been observed, children are to be protected from sexual conduct, even if they are willing participants. As Basten JA explained in R v Nelson [2016] NSWCCA 130 at [23]…
Gregory John Walsh v The Queen
[2015] NSWCCA 83 Para 58

…tween the attempt at fellatio and actual fellatio. But in the context, the attempt did not substantially lessen the objective seriousness ( Walsh v R [2015] NSWCCA 83 at [25]). This was a particularly serious instance of offending.…
EG v R
[2015] NSWCCA 21 Para 140

…nd denunciation and holds the offender accountable and also a sentence that acknowledges the violation and significant harm to the victims. In EG v R [2015] NSWCCA 21 at [42], it was said in that case that the concern of the courts is to send a message to those who would sexually abuse children intentionally and re…
R v BA
[2014] NSWCCA 148

…EG v R [2015] NSWCCA 21 Geagea v R [2020] NSWCCA 350 Muldrock v The Queen (2011) 244 CLR 120 PC v R [2022] NSWCCA 107 R v BA [2014] NSWCCA 148 R v Lau [2022] NSWCCA 131 R v Nelson [2016] NSWCCA 130 R v Olbrich (1999) 199 CLR 270 R v Youkhana [2004] NSWCCA 412 RH v R [2019] NSWCCA 64 Savvas v The Queen (1995) 183 CL…
MRW v R
[2011] NSWCCA 260 Para 66

…unts 3-6 and 8, consistently with the jury’s verdicts, the offender abused a position of trust, although he argued, consistently with MRW v R [2011] NSWCCA 260 at [77], the sentencing judge needs to be cautious in giving undue weight to this factor where abuse of authority was an element of the offence. The Crown ag…
Muldrock v The Queen
[2011] HCA 39 Para 139

…osts, but I acknowledge the significance of the non-parole period in accordance with the principles set out by the High Court in Muldrock v The Queen (2011) 244 CLR 120 at [26]-[31].…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 106

…imed any suggestion, that his mental condition caused or contributed to the offending, so as to reduce his moral culpability ( DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]). As Ms Crown argued, the mere presence of a mental condition at the time of the offending, if it is not causally connected to the offending…
R v Youkhana
[2004] NSWCCA 412 Para 74

…Nevertheless, in R v Youkhana [2004] NSWCCA 412 Hidden J said at [26]:…
Cheung v The Queen
[2001] HCA 67 Para 5

…a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict ”. In Cheung v The Queen (2001) 209 CLR 1 the High Court (in the joint judgment) summarised the law at [11]-[14]. I have had regard to those principles in finding the following facts. In particular…
R v Olbrich
[1999] HCA 54 Para 6

…e doubt. Conversely, where the offender relies upon disputed facts favourable to him, he must prove them on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.…
Savvas v R
[1995] HCA 29 Para 5

…In relation to the approach of a sentencing judge to fact-finding after a jury has rendered a guilty verdict, in Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “ a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verd…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 25AA, 3A, 46, 5 10 mentions
Crimes Act 1900 (ACT)
61I, 61J, 61KD, 66DB, 66EB, 66EC 7 mentions

Medium Neutral Citation:	R v Scholz [2023] NSWDC 222
Hearing dates:	16, 23 June 2023
Date of orders:	23 June 2023
Decision date:	23 June 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 151 - 152
Catchwords:	CRIMINAL LAW – sentencing – sexual offences – sexual touching of child – aggravated sexual touching – aggravated sexual assault - two victims – offender occupied senior leadership position within a Brigade of the Rural Fire Service of NSW – significance of ‘grooming’ and ‘exploitation’ as factors – whether prior good character and absence of prior convictions can be taken into account as mitigating factors - significance of offender having Post-Traumatic Stress Disorder
Legislation Cited:	Crimes Act 1900 (NSW) ss 61I, 61J, 61KD, 66DB, 66EB, 66EC Crimes (Sentencing Procedure)Act 1999 (NSW) ss 3A, 5, 21A, 25AA, 46
Cases Cited:	Bhatia v The Queen [2023] NSWCCA 12 Cheungv The Queen (2001) 209 CLR 1 DH v R [2022] NSWCCA 200 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 EG v R [2015] NSWCCA 21 Geagea v R [2020] NSWCCA 350 Muldrock v The Queen (2011) 244 CLR 120 PC v R [2022] NSWCCA 107 R v BA [2014] NSWCCA 148 R v Lau [2022] NSWCCA 131 R v Nelson [2016] NSWCCA 130 R vOlbrich (1999) 199 CLR 270 R v Youkhana [2004] NSWCCA 412 RH v R [2019] NSWCCA 64 Savvasv The Queen (1995) 183 CLR 1 Walsh v R [2015] NSWCCA 83
Texts Cited:	S Odgers Sentence (6th ed), Longueville Media
Category:	Sentence
Parties:	Office of the Director of Public Prosecutions (ODPP) Mr M Scholz (offender)
Representation:	Counsel: Ms M Heywood for the Crown Mr J Tyler-Stott for the offender Solicitors: ODPP Sydney Criminal Lawyers for the offender
File Number(s):	2021/00148301
Publication restriction:	Non-publication of the victims’, complainant’s and children involved in the proceedings names

Count	The offence	Maximum penalty	SNPP?
1	Between 1 March 2021 and 3 April 2021, at Wilberforce in the State of New South Wales, did intentionally touch sexually MC, a child then aged between 10 & 16, namely 15 years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW)	10 years’ imprisonment	N/A
2	Between 1 March 2021 and 3 April 2021, at Wilberforce in the State of New South Wales, did have sexual intercourse with MC, without the consent of MC, knowing that she was not consenting, when MC was a person under the age of 16 years, namely 15 years, contrary to s 61J(1) of the Crimes Act 1900 (NSW).	20 years’ imprisonment	10 years’ imprisonment
3	Between 27 March 2021 and 26…