R v Scholz

Case •

[2023] NSWDC 222

•

23 June 2023

No judgment structure available for this case.

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

  1. 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.

  2. 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 April 2021 at Blaxlands Ridge in the State of New South Wales, in circumstances of aggravation, being that MC was under the offender’s authority, did intentionally touch sexually MC without the consent of MC to the touching and knowing that she was not consenting, contrary to s 61KD(1)(a) of the Crimes Act 1900 (NSW)

7 years’ imprisonment

5 years’ imprisonment

4

Between 1 January 2021 and 29 April 2021 at Blaxlands Ridge in the State of New South Wales, in circumstances of aggravation, being that MC was under the offender’s authority, did intentionally touch sexually MC without the consent of MC to the touching and knowing that she was not consenting, contrary to 61KD(1)(a) of the Crimes Act

7 years’ imprisonment

5 years’ imprisonment

5

Between 27 March 2021 and 26 April 2021 at Blaxlands Ridge in the State of New South Wales, in circumstances of aggravation, being that MC was under the offender’s authority, did intentionally touch sexually MC without the consent of MC to the touching and knowing that she was not consenting, contrary to s 61KD(1)(a) of the Crimes Act 1900 (NSW)

7 years’ imprisonment

5 years’ imprisonment

6

Between 27 March 2021 and 26 April 2021, at Blaxlands Ridge 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 under the offender’s authority, contrary to s 61J(1) of the Crimes Act 1900 (NSW)

20 years’ imprisonment

10 years’ imprisonment

Alternative charge to count 7

Between 27 March 2021 and 26 April 2021, at Blaxlands Ridge in the State of New South Wales, did have sexual intercourse with MC, without the consent of MC, knowing she was not consenting, contrary to s 61I of the Crimes Act 1900 (NSW)

14 years’ imprisonment

7 years’ imprisonment

8

Between 5 April 2021 and 17 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 under the offender’s authority, contrary to s 61J(1) of the Crimes Act 1900 (NSW)

20 years’ imprisonment

10 years’ imprisonment

10

Between 1 January 2021 and 18 March 2021, at Colo in the State of New South Wales, did intentionally touch sexually BJ, a child then aged between the age of 10 & 16, namely 15 years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW)

10 years’ imprisonment

N/A

11

Between 1 January 2021 and 18 March 2021, at Colo in the State of New South Wales, did intentionally touch sexually BJ, 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

12

Between 14 February 2021 and 18 March 2021, at Wilberforce in the State of New South Wales, did intentionally touch sexually BJ, 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

13

Between 18 March 2021 and 31 March 2021 at Colo in the State of New South Wales, did intentionally touch sexually BJ, 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

14

Between 18 March 2021 and 31 March 2021, at Colo in the State of New South Wales, did attempt to have sexual intercourse with BJ, without the consent of BJ, knowing she was not consenting, when BJ 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

  1. In summary, this amounts to:

  1. five offences of intentionally sexually touching a child;

  2. two offences of aggravated sexual assault (the circumstance of aggravation being that the victim was under 16 years);

  3. three offences of aggravated sexual touching of another person (the circumstance of aggravation being that the victim was under the offender’s authority);

  4. two offences of aggravated sexual assault (the circumstance of aggravation being that the victim was under the offender’s authority); and

  5. one offence of sexual assault (without consent)

  1. The jury found the offender not guilty on counts 7, 9, 15, 16 & 17 of the indictment (count 17 being an alternative to count 16). Count 9, on which the offender was acquitted, concerned an allegation involving a different complainant (HH) to the two victims.

Approach to sentencing after jury verdict

  1. 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 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, the jury’s verdict necessarily accepted an acceptance of the victim’s credibility and reliability, certainly when it came to their account of how and in what circumstances, the offending occurred.

  2. More generally, to the extent that the Crown relies upon disputed facts adverse to the offender, it must prove them beyond reasonable 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.

  3. A cursory perusal of the above table suggests that the jury accepted the credibility and reliability of the victim, MC. The Crown persuaded the jury beyond reasonable doubt that all of the sexual acts constituting all of the charges concerning this particular victim occurred. The circumstance that the jury acquitted the offender on count 7 (aggravated sexual assault) was only to do with the age element of that count not being proven and the jury found the offender guilty of the alternative charge of sexual assault.

  4. The position in relation to the other victim, BJ, was slightly more equivocal. The jury acquitted the offender in relation to charges 15-17 (inclusive). Those charges concerned successive incidents that were alleged to have occurred as a result of the victim, BJ, attending a campsite with the offender in April 2021. The attendance of BJ at such camp was hotly contested at trial and, as Counsel for the offender had submitted at trial, there was no one who corroborated BJ ever having attended a campsite with the offender. Counsel for the offender also argued before the jury, apparently persuasively, that it might have seemed inconsistent for BJ to have consented to attend a campsite with the offender in April 2021 after having endured the offending that sustained counts 10-14 (incl) from January to March 2021.

  5. The jury received not only a separate consideration direction but also a Markuleski direction. The jury had also been instructed that they could accept some parts of the evidence of a witness, but not others. In my view, their verdicts may be interpreted as a rejection of BJ’s recollection that she had been the subject of sexual activity with the offender on a camp in April 2021, but, conscious of that rejection, the jury still accepted BJ as a credible and reliable witness and accepted her evidence that gave rise to counts 10-14.

Circumstances of offending

  1. The victims, MC and BJ, knew each other. They and another person, who was a complainant (HH), were all about the same age and all attended the same High School and acknowledged that they had on-again-off-again friendships of varying intensity of the kind often experienced amongst teenage girls.

  2. The younger sister of the other complainant (CH) knew the offender’s son, WS, from school and they became friends, outside of school. The offender’s place, in Wilberforce, was not far from where the other complainant (HH) lived. HH’s complainant’s family got to know the offender through the friendship between CH and WS.

  3. By at least early 2021, MC and BJ, were each spending time at HH’s place, after school.

  4. The offender at all material times had been an experienced and senior member, holding different offices, within the Wilberforce Brigade of the Rural Fire Service. HH became enrolled as a cadet with the RFS and later, with the involvement of her mother, it was suggested that MC and BJ might also be interested in joining. It is not disputed that both of the victims participated in recreational activities with the offender, involving swimming, motor-bike riding, riding in the offender’s motor vehicle and, in the case of MC, also, camping overnight. All of the alleged offending occurred from February through April 2021. A convenient temporal reference point was that the offending occurred before, during or after significant floods that had occurred in the Hawkesbury region in March 2021. Specifically, it is agreed that the first flood warning issued in relation to the Hawkesbury-Nepean March 2021 floods was on 18 March 2021 and flood warnings continued until 28 March 2021, when the river fell below minor flood levels at North Richmond and Windsor.

Offending against MC

  1. Although out of temporal sequence, I will deal initially with the offending against MC, given the sequence of this offending on the counts on the indictment.

  2. MC turned 16 years of age on 4 April 2021.

Counts 1 & 2

  1. The incident occurred in the offender’s red car when it was just getting dark. It was during the floods, and therefore occurred in the second half of March 2021. Indeed, at trial, it was an agreed fact that on 24 March 2021, members of the Wilberforce Fire Brigade assisted to unload and distribute supplies and the offender gave evidence of taking MC (and CH) for a drive in his red Hilux vehicle as a ‘favour’ to the girls after they had come along to assist the Brigade earlier in the day.

  2. MC was driving the car, whilst sitting on the offender’s lap – the offender was managing the pedals and gears. CH was in the car, although there was dispute as to where she sat; a dispute which is not presently necessary to resolve. The offender started putting his right hand inside MC’s tracksuit pants before rubbing her leg and vagina on the outside of her underwear and, then he put his hand on the inside of her underwear and rubbed her vagina. This is the conduct comprising count 1. At the date of the offending, MC was 15 years of age.

  3. The sexual intercourse sustaining count 2 followed the conduct that comprised count 1, occurring as a progression of the same driving during the floods. The offender inserted his fingers inside MC’s vagina, causing her pain. In response to this, the victim steered the car to one side, which prompted the offender to take hold of the steering wheel. At the date of the offending, MC was 15 years of age. The victim did not consent to being digitally penetrated in this way. She would otherwise have been focussed on her driving. I am satisfied beyond reasonable doubt that the offender was actually aware that she did not consent to being digitally penetrated.

Count 3

  1. The victim was involved in the first of two camping trips she shared with the offender at North Turnbull, on the Upper Colo, to the side of fire trails, between 8 and 10 April 2021.

  2. The offender gave evidence at trial that he had obtained the permission of MC’s mother for MC to go on that trip.

  3. A general and disputed issue during the trial was whether and in what circumstances, the offender had condoned, encouraged or permitted MC to drink alcohol in his presence. Although the offender accepted that on another occasion not the subject to a particular charge, being a barbecue at his place on Good Friday, 2 April 2021, MC had sculled a Vodka cruiser when he was in near proximity, the offender vigorously disputed that he otherwise allowed her to drink that beverage. I reject that denial. It was as plain as a pikestaff that on the occasion of the MC sculling, she was engaging in an exhibitionist display. The gathering was not large. She was goaded by the offender whose voice was conspicuously clear.

  4. I find beyond reasonable doubt that on the occasion which was the subject of this count, MC was drinking Vodka cruisers and had been permitted to do so by the offender. She said, and I accept, that she felt tipsy after having consumed this type of beverage. This event was only a week or so after the barbecue. The offender knew that MC drank Vodka cruisers. It is not the sort of drink one would naturally associate with a middle-aged family man who otherwise said he was a beer drinker. I also accept the victim’s evidence that the offender was drinking beer. The offender had also seen the dis-inhibiting effect of the consumption of Vodka cruisers upon the victim, if that became excessive. It is not now necessary to determine how many Vodka cruisers the victim had consumed at the point of offending. It is material enough that he had seen the potential effects upon her of drinking this beverage. I further find that the victim went to retrieve another from the esky/fridge in the offender’s car. She was standing behind the offender’s car when the offender grabbed her around the waist and then kissed her on her lips, for not very long before she walked away and returned to the campfire, where the offender’s children were.

Count 4

  1. This charge concerned a camping trip at North Turnbull. Before the camp goers went to bed, the victim gave evidence of being really drunk when the offender took her on a motorbike ride. During that ride, he put her hand on his penis whilst he was on a motorbike during the night. I note that there was some uncertainty as to whether this conduct occurred on the first or the second of the camps. The victim said that it occurred on the former occasion; although the Crown had addressed the jury on the basis that it occurred on the latter occasion. The precise choice of the occasion is, however, immaterial first, because both camps occurred in the date range alleged on the indictment and secondly, the victim had said that she had consumed alcohol on both camps and the victim’s age (noting that she turned 16 on 4 April 2021) was not an essential element of the offence.

Count 8

  1. Between the two camping visits that the victim had with the offender, the offender and his family had a holiday trip to Coffs Harbour. This was between 11 and 17 April 2021; the last week of the school holidays. For this purpose the offender used a caravan. During that trip, the offender communicated frequently with the victim via text. The offender returned home on or about 17 April 2021. He saw the victim that afternoon before parking his caravan at the back of his home. A few days later, in a lounge section of a caravan during the day, he pulled down his pants and grabbed MC by the ponytail and inserted his penis into MC’s mouth before the offender ejaculated. The offender then started laughing after she spat out his ejaculate.

Counts 5- (alternative to) 7 (incl)

  1. These counts all concerned sexual activities involving the offender and MC on the ANZAC Day weekend in 2021. ANZAC Day for that year fell on a Sunday. Others at the camp were the offender’s children, WS and BJ, and the offender’s brother, Andrew Scholz. However, Andrew Scholz did not stay overnight.

  2. Later the same evening, the camp goers went to bed. There was evidence that the younger of the two children, BJ, went to bed first.

  3. There was also some conflicting evidence of the sleeping arrangements in the single tent which the offender had prepared. According to evidence from the offender and his children, the victim was sleeping at a right angle to the offender, with her head placed in very close proximity to that of WS. The victim said that she was sleeping side by side alongside the offender, near one of the sides of the tent.

  4. Having regard to the jury’s verdict, I am satisfied beyond reasonable doubt that the sleeping arrangement was as the victim had depicted it (being Exhibit C at the trial); with her sleeping bag about 50-60cm away from the offender’s own bag, with the two bags lying parallel together. This made it much easier to the offender to commit the offending and reduced the possibility of the offending coming to the attention of WS, or the other child. In the latter respect, although WS said that he was restless during the evening, I find that the sexual activities occurred at a time when he had fallen asleep.

  5. The offender pulled the victim’s sleeping bag towards him so that his erect penis touched her leg, before he got on top of her, as she was lying on her back, before touching her vagina outside of her underpants before trying first to put his penis inside her. This is the conduct the subject of count 5.

  6. During the same evening, and following on the incident the subject of count 5, the offender put his fingers inside the victim’s vagina. This was another instance of digital penetration by the offender putting his finger or fingers into the victim’s vagina. This is the conduct the subject of count 6.

  1. During the same evening, the offender inserted his penis into the victim’s vagina. This is the conduct the subject of the alternative to count 7.

  2. All of the sexual activities sustaining counts 3 - (the alternative to) count 7 occurred in circumstances where the victim was under the care and supervision of the offender; the latter having expressly procured the approval of MC’s mother to the first of the camping experiences. It was not so clear that MC’s mother expressly approved of MC attending the second camping experience. That appeared to occur consensually as between the offender and the victim. Nevertheless, text messages later indicated that MC’s mother did not disapprove of her daughter attending the ANZAC Day camping trip. At any rate, the expectation in MC’s mother about the offender continuing to care and supervise her daughter on the second camping trip had carried over from the first camp. The offender did not suggest otherwise. It follows that the offender well knew that the victim would not have been in his company at the campsite but for his position of authority over her.

  3. It follows from the jury’s verdict that MC did not consent to any of these activities. I find, beyond reasonable doubt that each of the incidents the subject of these counts was preceded by the victim being allowed access by the offender to the vodka cruisers. Further, having seen the exhibitionist display of MC at his home barbecue earlier in April, the offender would have seen that the consumption of vodka cruisers may, if consumed to a certain degree, have weakened any inhibition in MC, a 16-year-old girl. I am satisfied beyond reasonable doubt that the offender knew that she did not consent to the sexual activities the subject of these counts.

Assessing the objective gravity of the offending against MC

  1. As a preliminary point, I start from the position that it is unnecessary to ascribe a particular point on the scale of offending, with particular 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.

Generally applicable (to all counts) matters relevant to objective gravity

  1. Certain factors pertaining to the objective seriousness of the offending (which I distinguish from statutory aggravating factors) were identified 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.

  2. Two other matters were raised by the Crown which assumed greater prominence in the sentencing hearing. These were that the offending featured ‘grooming and exploitation’ by the offender and that the victims were vulnerable. The Crown confirmed at hearing that these matters were relevant to the objective gravity of the offending, rather than being matters that the Crown relied upon as falling within the statutory aggravating factors under the CSP Act.

Grooming & exploitation

  1. The Crown submitted that the offender deliberately groomed and preyed on the victims, both young girls, who essentially lacked fathers. For BJ he took her on outback adventurous – even risky – activities. For MC, he did that as well but in addition, he enabled her to have access to alcohol and colluded with her to go behind her mother’s back and meet up with her after school. (I accept the offender’s submission that about there being a doubt about whether the offender provided alcohol to the victim BJ).

  2. The offender submits that whilst normal social norms and boundaries were crossed, this did not rise to the level of grooming or exploitation, which he submitted carried the connotation of having an intention to sexually exploit the victim.

  3. In her written submissions in reply, Ms Crown referred me to a research paper commissioned and funded by the Royal Commission into Institutional Responses to Child Sexual Abuse, titled ‘Grooming and child sexual abuse in institutional contexts’ by Professor Patrick O’Leary, Emma Kho and Andrew Dare. Over the offender’s objection, I allowed the Crown to rely upon a limited proportion of that report. The parts that were admitted were:

“McAlinden (2012) has proposed a newer definition of grooming which includes:

The use of a variety of manipulative and controlling techniques; with a vulnerable subject; in a range of inter-personal and social settings; in order to establish trust or normalise sexually harmful behaviour; with the overall aim of facilitating exploitation and/or prohibiting exposure. (McAlinden, 2012, p.11)

(Exhibit C, p 7)

……

“Incremental acts of grooming usually increase in intensity. While the initial stages in the grooming process may appear innocent, later stages are more overt in the perpetrator’s attempt to desensitise the child to sexual activity (Elliot, Browne & Kilcoyne, 1995). Some perpetrators may offer the child alcohol and/or drugs (Tyler & Cauce, 2002), while others will use pornography and/or sexually explicit dialogue (Erooga, Allnock & Telford, 2012), sometimes in conjunction with alcohol and/or drugs. It may be easier to detect grooming at this later stage, as these kinds of acts constitute observable professional misconduct and personal boundary transgressions. They may also point to an earlier pattern of unidentified grooming that may now be recognisable in hindsight.

Crime prevention theories also conceptualise grooming as an incremental process. Prospective perpetrators follow ‘scripts’, where grooming is viewed as a ‘crime commissioning’ process. Leclerc, Wortley and Smallbone (2011) proposed a ‘protoscript’, which includes incremental stages of grooming and abuse in institutional settings that proceed through a ‘crime setup’ phase to a ‘crime achievement’ phase.

Acts of grooming are often undertaken with the aim of making the prospective victim feel ‘special’ or ‘privileged’. At the same time, the child knows he or she is engaging in activities that contravene rules, and can therefore be made complicit in maintaining secrecy. This complicity can also serve to further isolate the child from others.”

(Exhibit C, pp10-11)

……

“A perpetrator may look to exploit a child’s emotional vulnerability by positioning themselves as a supportive confidant (Erooga, Allnock & Telford, 2012). In this way, a child’s perception of the relationship with the perpetrator can be manipulated (Sullivan & Quayle, 2012) leading to more opportunities for the perpetrator to spend time alone with the child. Part of the purpose of this grooming strategy is to create emotional dependence.”

(Exhibit C, p 16)

  1. The Crown submitted that these portions of the report, to the extent that they described typical features of grooming and exploitation, were apposite. In particular, the victims were plied with alcohol, the offender had fostered close relationships with both of them; communications were arranged in a secretive way through the use of social media so as to be concealed from the victims’ mothers. They were induced to feel an emotional connection with the offender of a quasi-romantic kind.

  2. I accept those matters, but would add that both victims were from backgrounds involving an absent father, or at least a father who, was not closely involved in their growth through their formative teenage years. It is not, I think, too much of a stretch to say that in the narrow period of offending the offender played something of the role of a paternal surrogate. It was not just the circumstance that, from their perspective, he was a purveyor of fun outdoor activities. But he was providing emotional connection and support as well. This was especially evident in the voluminous messages with MC. In relation to her, he was a close confidant. But he also communicated with BJ on WhatsApp as well. I agree with the Crown that the offender’s offending could be characterised in the way described in the survey (Exhibit C) in the last portion I have quoted in particular.

Vulnerability of the victims

  1. I accept that the victims were vulnerable as an inevitable and intended consequence of their being groomed and they were ripe for exploitation.

  2. Accepting the application of these common factors, I now turn to the individual offences and draw out additional features relevant to consideration of their objective gravity.

Addressing each offence individually

  1. As to counts 1 & 2, the offending verged on the brazen, with another occupant – admittedly a younger child – also in the motor vehicle when the offending occurred. The victim was closer to the age of 16. The touching and then the sexual intercourse occurred at a time when the victim was plainly distracted by reason of her driving and vulnerable in that specific sense. Specifically in relation to count 1, the touching moved eventually towards the victim’s vagina. There was bare skin touching of her vagina. These matters mark out count 1 as being a serious instance of offending.

  2. I note in relation to count 1 (and also counts 9-13 (incl) involving the victim BJ) generally, consent is not an element of the offence. But more pertinently for sentencing purposes, consent is not a mitigating factor. 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]

“ To treat that [ie lack of opposition to sex by the victim] as a mitigating factor is to misunderstand the nature of the offence. Lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour.”

  1. As to count 2, the digital penetration did not last long, but it only stopped after the victim had taken action which prompted the offender to cease his offending. At any rate, as indicated elsewhere, shortness of duration of intercourse is not especially significant for offences of this kind since it may be explained by the offender’s desire to avoid detection. The victim said, and I accept, that the penetration hurt her and she felt uncomfortable. Nevertheless, the offending was at the lower end of seriousness for offending of this particular kind.

  2. Count 3 was a separate incident. In isolation, the act of kissing someone who one knows on the lips is not the most serious form of sexual touching. But it did involve a minor, albeit unwanted, element of force through the offending bringing the victim’s body closer to him to effectuate that touching. He kissed her at a point when she was ‘tipsy’ and, to that extent, also vulnerable, by lowering her capacity to physically resist (this being a discrete point of vulnerability to the general finding of vulnerability previously made). The victim’s age was not an element of this offence, so her young age and the significant age differential generally is material to assessing the seriousness of the offending. These circumstances take the offending out of the lowest range which the physical act of sexual touching might otherwise have indicated.

  3. Count 4 was also a separate incident. The physical act of forcing the victim to touch the offender’s penis strikes me as being less serious than the offender touching a part of the victim’s body. But similar to count 3, the offending involved the offender taking advantage of the victim who, in her words, was ‘really drunk’. It also occurred at a point where the offender was driving a vehicle and where the victim was dependent upon his doing so safely; and the offender knew as much. Doubtless the circumstance that the offender was driving a motor bike, from his perspective, added a layer of thrill to the sexual gratification he was already receiving. This was a serious instance of offending of this kind.

  4. Counts 5 - (the alternative to) 7 (incl) may be grouped together. They formed part of the same episode and, in a sense, it is artificial to divide them into separate components of offending. Consistently with what I have already said about grooming, I find that there was planning associated with the offending in each case, given the deliberate placement of the sleeping bags prior to the sexual activities. (This, again is additional planning beyond what I have said about grooming and exploitation). Contrary to the implication in the offender’s submission, the offending was not simply spontaneous or opportunistic. The initial sexual touching arose through the offender, a man of solid build imposing himself against a teenage girl and touching the most intimate part of her anatomy (skin on skin touching); before progressing to the act of digital penetration (causing the victim to feel sore) and thereafter penile-vaginal intercourse. There was no evidence as to how long these sexual activities lasted (not that this is especially significant), nor, in the case of count 7, any ejaculation, which would have elevated the seriousness of the offending. The offending for counts 5 and 6 were serious instances of offending for the offences in kind; the offending for count 7 being slightly less serious for an offence of that particular kind.

Count 8

  1. As indicated, the lead up to this offending involved the offender being separated from the victim whilst he was on a family caravan holiday between 11 and 17 April. But the offender continued to send text messages to the victim even in this period. The texts (which appeared in Exhibit G at the trial) over this period were revealing in number and content in providing a window into their relationship. There were many of them, although there is a break in messages (between 12 and 16 April), with a large number of messages on 17 April, the day that the offender returned from holiday. It was during this period that the offender was asking to communicate with the victim through WhatsApp. Messages are affectionate in tone: in one of them, the offender informed the victim that she made him laugh; in another, the victim said “You’re a poof haha” and the offender responded “How do u know?” (and later “ok what attributes to I display that indicate I am a poof”?). These were messages of a flirtatious kind between a married middle aged man and a teenage girl and confirmatory of the emotional connection which, as previously noted, was at the hallmark of the offender’s grooming. There was a somewhat needy (on the part of the victim) tone to messages on 17 April as the victim was inquiring where, along the path back home, the offender was and him providing the victim updates as to his locations.

  2. I find that the offender invited her into his caravan and that he planned to have sexual activity with her. This offending, in contrast to other counts, concerning the conduct at camp, did not involve the supply by the offender of alcohol to the victim. Another point of contrast was that the offending did involve a measure of some physical force, in holding on to the victim’s ponytail, and ejaculating in her mouth. His disregard for the victim was then indicated by his laughing at her as she spat out that ejaculate. There was no indication of the duration of the sexual intercourse. Nevertheless, I regard this offending as a very serious form of offending for the type.

Offending against BJ

  1. BJ was 15 years of age at all material times during the period of offending.

Count 10

  1. In about February 2021, prior to the floods the offender picked BJ up to go down to the Lower Colo River. She was ‘doubling’ him, being driven on the back of his motorbike. The victim, BJ was in the bathroom block when the offender came in. The offender closed the door behind her and after not responding to her asking him why he was in there, he touched her breasts and circled his hands on the outside of her t-shirt and then moved his hand down and was touching BJ on the vagina, outside of her shorts.

Count 11

  1. After the incident giving rise to count 10, BJ was again doubling on the back of the offender’s motorbike, getting a lift back home along Putty Road. She had her two arms around his stomach. Whilst riding, the offender grabbed BJ’s right hand and moved it on to his penis which was clothed.

Count 12

  1. BJ was again doubling on the offender’s motor bike. This was before the floods. They were initially following the bike being driven by the offender’s son, WS. But the offender’s path diverted. The victim fell off the motor bike. She ended up in a ditch. The offender stopped riding his bike and fell on top of her. The offender pulled his pants down to his knees and grabbed her hand and put it on his penis outside his clothing.

Count 13

  1. During the floods, the victim BJ was again in the Lower Colo River in the presence of others, including MC and HH. BJ was wearing a t-shirt and tights. She went to the bathroom block to get changed after she had been swimming. When she was in there, the offender came in and closed the door. He grabbed BJ’s shoulders and used force, by pushing her up against the wall. She tried to get away but he had his hands on her shoulder. With the victim’s top off, the offender grabbed her breasts with his hands, squeezing and circling them.

Count 14

  1. The offending conduct the subject of this count occurred as part of the same alleged incident as for count 13, being in the bathroom block. BJ had slid down to her knees. The offender pulled his pants down and tried to insert his penis into her mouth. BJ put her head down to her chest, but the offender again used force, by grabbing the bun on her hair. The offender’s penis got close enough to touch BJ’s mouth, but she clenched her teeth so as to prevent the offender’s penis actually entering her mouth. She recalled the episode as lasting for between 10 and 15 seconds.

Assessing the objective gravity of the offending against BJ

  1. For all of the counts relating to the victim, BJ, the offender noted that her age was at the upper end of the age threshold for the offences.

  2. As to count 10, the offender tried to conceal his offending, as well as preventing the victim from a means of escape, by closing the door behind him. The location was already remote. The touching occurred on the victim’s breasts and vagina, although on both occasions, it was on the outside of the victim’s clothing. Given the public place that the offending occurred in, it was not surprising that the touching did not last for very long. But it occurred also despite the victim’s manifest opposition. The offending was quite serious.

  3. As to count 11, this offending was similar in some respects to that which was described in count 4 against the different victim; although it was less serious in the sense that there was no skin to skin contact. The victim did however try to pull away but was unable to. Shocking though this experience would have been to the offender, because of its outrageous exhibitionism, it was a lesser scale of offending of this kind.

  4. As to count 12, the context of the victim having fallen off the bike is significant. She would have been in a period of some shock, and possibly some hurt or disorientation; after falling off the offender’s motor bike. I find that the offender deliberately fell on the victim. He exposed his penis, although the victim’s hand touched it on the outside of his clothing. This offending was serious.

  5. Counts 13 and 14 may viewed as part of a single episode. The start of the offending for count 13 resembled that of count 10, but it became more serious when he became violent in trying to overcome the victim’s resistance. The touching that occurred on the victim’s breasts involved skin-to-skin contact. The offending for count 13 was serious. I will refer later to an aggravating circumstance.

  1. Having violated her in the sense of sexually touching her the offender then went further. She was in a degraded position from that earlier offending (on count 13), being down on her knees. I refer to his use of force in the next section of these remarks. It happened over 10 to 15 seconds; which was plainly long enough for him to know that she did not want to engage in that (or any other sexual) activity. I agree with the Crown that there was minimal difference between 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.

Aggravating circumstances

  1. Some of the offences contain, as essential elements, circumstances of aggravation, so particular care needs to be exercised when evaluating the presence or significance of statutory aggravating factors to avoid double counting.

Abuse of position of trust

  1. The Crown submitted that the offending involved an abuse of trust. The Crown says that it was not just the trust of the victims which was abused, but also the trust of the victims’ respective mothers.

  2. For counts 3-6 & 8 the circumstance that the victim was under the offender’s authority was an element of the offence. The conceptual similarity and difference 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, 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 agreed with this submission and I also accept it.

  3. In oral argument at the hearing, the Crown also argued that breach of trust applied to count 2, notwithstanding that for that offence, the aggravating circumstance 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.

  4. The offender submitted that in relation to the remaining counts (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].

  5. The Crown submitted that this particular aggravating factor applied to Counts 1, the alternative to 7, and 10-14 (incl) as well.

  6. I prefer the Crown’s submissions. The relations between the offender and the victims did not amount to any ‘business of social communion’. The offender was identified as someone who, by his standing within the community, was entrusted with a responsibility to care for the victims who he knew had lacked, to adopt the Crown’s submission, stable father figures. Indeed the sort of activities that he engaged in with the victims were the sort of leisurely or recreational activities that a father devoted to his daughters might engage in. His obligation of care was heightened in those circumstances.

  7. It will be evident from the last paragraph that there are echoes of my treatment of the feature of ‘grooming and exploitation’ earlier as a common feature relating to the objective gravity of each of the offences. I think great care needs to be exercised when weighing this particular aggravating factor. In my view the matters that the Crown relied upon to argue that there was ‘grooming and exploitation’ as a feature of the objective seriousness of each offence, and the matters relied upon by the Crown to invoke this particular statutory aggravating factor, are substantially indistinguishable. I agree further with the offender’s submission that other factors that fell within the rubric of ‘grooming had exploitation’ could have fallen with other statutory aggravating factors which the Crown had eschewed, including the circumstance that the victim was vulnerable (s 21A(2)(l)), but which has also been taken into account when assessing the objective gravity of the offending. I note that in the definition of grooming proffered by the authors of the survey (Exhibit C, p 7), the word ‘trust’ and the expression ‘vulnerable subject’ are subjoined.

  8. In the circumstances, having already taken grooming and exploitation into account on the objective gravity, I give no additional weight to this statutory aggravating factor.

Harm to victims

  1. All of the three categories of offences are ‘child sexual offences’. The offender is to be sentenced in accordance with s 25AA of the Crimes (Sentencing Procedure)Act 1999 (NSW) (the CSP Act). Further, I am bound to have regard to the trauma of sexual abuse on children understood as at the time of sentencing, including recent psychological research and the common experience of courts.

  2. Nevertheless, in R v Youkhana [2004] NSWCCA 412 Hidden J said at [26]:

“ … before a judge could find ‘substantial emotional harm’ within the meaning of s21A(2)(g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have …..”

  1. Both victims supplied victim impact statements. The victim, MC (whose statement was read out by a support person) referred repeatedly to her loss of innocence, because of the offender and described, in various ways, the impacts upon her. Some of those make for very disturbing reading. A prominent theme is the shame that she has had to endure but, more positively, her sense of resolution in overcoming her fears generated by the processes of the criminal justice system.

  2. The Crown alluded to evidence from MC’s mother at trial about her exhibiting a noticeable change of behaviour after the offending committed; by playing unusually depressing music and coming out of the bathroom in tears and cutting her legs (T 402.41.44)

  3. The victim, BJ, prepared points rather than making a narrative statement. She emphasised the impact of the offender in making her feel unsafe, especially around men and his impact upon her physically and at school. She also referred to her anxiety about the future.

  4. The Crown also alluded to evidence at trial about some physical effects, such as BJ stopping eating (and requiring an iron transfusion) and being discovered by her mother crying in a foetal position (T 205, 415-416).

  5. I observed both of the victims give evidence at trial. Both exhibited genuine distress when they gave accounts of multiple sexual acts inflicted them as teenagers, at a vulnerable and formative stage of their lives.

  6. The offender’s Counsel acknowledged that offences of this king have a long-lasting deleterious impact on victims.

  7. The Crown did not however, argue that the factor in s 21A(2)(g) of the CSP Act was engaged.

  8. I do not find that it is engaged, although as one of the important sentencing considerations (s 3A(g)) all of this is to be taken into account.

Actual violence and threat of violence

  1. As to the actual violence for counts 13 and 14, there was actual force exerted on the victim BJ. The Crown also referred to evidence from BJ that the offender had threatened her after the offending, before she spoke to police in repeated telephone calls. That evidence was, however challenged by the offender’s trial counsel on the basis that it had not been mentioned in an earlier (‘original’) witness statement (T 221.45 – 223.31). In his supplementary written submissions, the offender’s Counsel also noted that this aspect of BJ’s evidence was not wholly corroborated by her mother other than a vague recollection that BJ was receiving calls from the offender and that BJ requested that she (Mrs J) just ‘block’ the offender. The fact-finding for consideration of this particular submission is complicated. The sequence of the evidence is as follows:

  1. The floods began on 18 March 2021.

  2. Flood warnings ceased on 28 March 2021.

  3. BJ gave evidence that she was last sexually assaulted by the offender “after the floods” (T 202.17), but for the last incident, which gave rise to counts 15-17 (whose date range, in each case, was 31 March 2021 to 30 April 2021), the offender was found not guilty. Put another way, all of the offending occurred before or during the floods;

  4. The offender gave evidence at trial that he had no contact with BJ after 24 March 2021.

  5. It was on 24 March 2021, that BJ assisted RFS personnel to unload supplies.

  1. The jury’s verdicts do not, in my view, compel acceptance of BJ’s evidence of the offender threatening to kill her. Apart from the matter not being an element of the offences, although the jury accepted her credibility and reliability, the jury did not itself feel precluded from rendering verdicts of not guilty to counts 15-17 (incl).

  2. Nevertheless, I am satisfied beyond reasonable doubt that the threat was made. The matters suggestive of doubt were not significant: the circumstance that she omitted something in a first police statement was immaterial in circumstances where it is unknown what questions the police officer, who helped the victim to compile the statement, asked the victim, forming the basis for that statement. It is not unexpected that a matter which, though relevant, is not at the core of an allegation of criminality, is not at the forefront of a complainant’s mind when first drafting a police witness statement. Doubt about the actual date when the threat was made was not material either. Contrary to the offender’s submission, the mother’s evidence lent weight to BJ’s evidence even if BJ did not disclose the content of the threat that the offender had made to her. It does not surprise that a teenage victim in her position, already dealing with the trauma visited upon her by the offender, may have been reluctant to delve into the detail of how the offender later threatened her with her mother. I accept that BJ was a witness of credit. Her evidence was inherently plausible. She was, in my view, unshaken about it when cross-examined. The offender gave evidence at trial, and subject to very limited exceptions, the jury rejected his evidence notwithstanding even a good character direction made in his favour.

The Offender’s Subjective case

Age

  1. The offender was 57 years of age between February and April 2021. He is now 59.

  2. The Crown submitted, and I accept, that the older age of an offender and a significant age differential between an adult offender and a victim of child sexual abuse are common incidents of offending of this type.

  3. At any rate to the extent that the offender’s age is relevant, its significance is subsumed within my consideration of his physical and mental condition which, for reasons to be later remarked upon, also play into the significance of the consideration of hardship.

Background

  1. The offender placed before this Court no less than four reports from mental health professionals: Dr Rodriguez (a psychologist), Dr Canaris, Professor McFarlane AO and Dr Nagesh. Some of these reports, which preceded the trial, appear to have been created to assist the offender with a civil claim, apparently against the RFS.

  2. Part of their reports concerned the offender’s background, which is most extensively set out in Dr Rodriguez’s report.

  3. The Crown argued that caution should be exercised when considering any of these reports indicating that, but for Dr Rodriguez, none of the other reports reckoned with the fact of the offender having committed these serious offences and, at any rate, were directed to a civil claim for compensation. These points may be accepted. I would also add that the offender did not give evidence in the sentencing hearing so the practitioners were reliant upon out of court assertions placed beyond scrutiny in this sentencing hearing.

  4. These points have force so in my view, the most probative report for consideration is that of Dr Rodriguez. He did take into account the guilty verdicts against the offender; and although he was reliant upon what the offender told him, I infer that he deployed his specialised knowledge in formulating his opinions doubtless factoring in the possibility of statements being conveyed to him by someone who had been convicted of multiple child abuse offences. Dr Rodriguez’ curriculum vitae refers specifically to his expertise with PTSD and his experience in dealing with sex offenders. I note also that there is no indication that the Crown required his attendance to attend to be cross-examined.

  5. The offender grew up in a loving, middle-class family in Annangrove, on a 5-acre property, which is to the northwest of Sydney’s CBD. He had an unremarkable childhood and the offender specifically denied any history of child sexual abuse or behavioural problems. He loved the outdoors. His father is still alive, but is quite elderly. He remains close to one of his two brothers,

  6. From an early age, he took an interest in joining the fire brigades. By the age of 14, he was taken to serious fires and motor vehicle accidents. The next year, as has been emphasised, his exposure to one such motor vehicle accident had a profound effect on his mental health. When he was aged 17, he suffered a rupture of his kidney when a pillion passenger in a motor vehicle accident.

  7. He began to drink alcohol from the young age of 13, but only in small amounts. He only began to drink regularly in his mid-20s. His involvement in the RFS opened up the possibility of greater drinking, as a form of debriefing after the traumatic effects associated with his duties with the service. But he apparently informed Professor McFarlane and Dr Nagesh that he had not been drinking since 2016 ‘to any extent’ because of a diagnosis of diverticulitis. I note that the victims of his offences (MC) had indicated that he had some drinking around campfire in the lead up to some of the offending.

  8. He was reputedly an average school student, but did not get into trouble and his social experience of school appeared tolerable.

  9. In terms of his employment history, after some early farming help, he started an apprenticeship in horticulture. He had other jobs, although the history is not extensive. Amongst other jobs, he had worked for the NSW Government as a soil expert; apparently since 1995.

  10. He had three short term relationships, and married in 1992, when he was aged 29. After the birth of their second child, the marital relationship deteriorated and according to the offender, they remained together for the sake of the children. He thought his wife had developed mental health issues after the children were born.

  11. His psychosexual history was unremarkable. He said he was interested in adult females and denied having experienced any sexual attraction or arousal in young males or females. He reported having a low sex drive since his mid-20s and claimed he had been impotent for at least 15 years; being last intimate with his wife around 2012. He reported having erectile dysfunction.

Mental condition

  1. All of the mental health professionals diagnosed the offender as suffering from Post-Traumatic Stress Disorder (PTSD). They all also point to his using alcohol as a coping mechanism to deal with distress associated with those symptoms. But as to the alcohol use disorder, the preponderance of opinion was that he was in remission.

  2. Professor McFarlane and Dr Nagesh also diagnosed him as having a Major Depressive Disorder. He told Dr Canaris (in October 2022 – again before trial) that he had been living, with some difficulty, with his brother and sometimes visits his elderly father; and there were “days when I feel I don’t want to be there anymore”. He indicated that the thing that held him together was his sons.

  3. Professor McFarlane’s report was the earliest in time, being dated 31 March 2022. This was before the trial. Professor McFarlane opined that the offender had developed acute PTSD following his exposure to a motor vehicle accident in 1978 when he was only 15 and his symptoms recurred when he was involved in a fatal motor vehicle accident in 1997. He has apparently been in receipt of workers compensation benefits for his PTSD since April 2021, attributable to the trauma experienced at the RFS. Dr Rodriguez was informed that the offender had attended over 40 serious motor vehicle accidents involving the death of at least one person, and in excess of 20 serious fires involving the death of another. The offender told Dr Canaris that in 2016, he went to a house on fire and stepped on a dead body numerous times; and he had a flashback about that episode in 2021.

  4. In his written submissions in chief (MFI 2), the offender’s Counsel referred only to the offender’s PTSD as a mental condition; and not other conditions alluded to by the mental health professionals.

  5. I find, in the circumstances that the only relevant mental condition of material significance to the sentencing discretion is the offender’s PTSD. The Crown accepted that he had this condition throughout the period of his offending.

  6. Without wishing to diminish the range and scope of his difficult experiences within the RFS, in terms of his exposure to inherently traumatic events, I would interpolate, at this point, and in response to Professor McFarlane’s specific reference to past motor vehicle accidents as a contributor to the offender’s PTSD, that a number of the instant offences involved the offender’s use of motor vehicles or indeed a motorbike for recreational activities. Some of the offences (counts 1 & 2), at least coincided with leisurely driving with the victim (MC) after floods. Other offences involved somewhat risky nature of his driving of a motor bike at trial (counts 4, 11 & 12) It is plain that the offender enjoys driving for leisure. Clearly, his PTSD symptoms did not incapacitate the offender from driving even though it might have been expected that of all activities, it might be driving that might trigger them.

  7. There is no suggestion in any of these reports from the mental health professionals, and his Counsel disclaimed 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, does not automatically lead to a more lenient sentence. That depended on the circumstances. In this case, the offender’s PTSD should not diminish the force to be given to general deterrence.

  8. There was no suggestion advanced on the offender’s behalf that his PTSD reduced his capacity to understand the wrongfulness of his conduct towards the victims or to exercise self-control, reduce his cognitive faculties or emotional restraints nor that he was unaware of the consequences of his actions. In the circumstances, I do not consider that his PTSD reduces the need for general deterrence.

  9. Nevertheless, although there is no basis for reducing the force of general deterrence, there is a basis, in view of his current state, for giving less weight to specific deterrence. This can occur even in the absence of a finding of a causal connection between health conditions and offending (S Odgers Sentence (6th ed), Longueville Media [4.74], p 357, fn 554). Further, although some criticism might be made of the offender for delaying the seeking of treatment until 2021, I am not unduly critical: in this regard delay in seeking treatment is not uncommon for persons who think they can cope through other mechanisms.

Antecedents and prior good character

  1. The offender had no prior criminal convictions. There was evidence at trial, which I noted in my summing up, regarding his extensive service and attainment of leadership positions within the Rural Fire Service (Wilberforce Brigade) and his activities in mentoring and incidental involvement in charitable fund-raising.

  2. Much of this was emphasised again in this sentencing hearing. At this sentencing hearing he relied upon documents heralding his contributions to firefighting during the 2019-2020 New South Wales bushfires. This included a Citation from the then NSW Premier (accompanied by a letter from the Premier), a Certificate of Service he received from the Commissioner of the NSW Rural Fire Service (also accompanied by a letter). Away from his contribution to dealing with the Bushfires in 2019-20, he also attached a Certificate of Life Membership from the Wilberforce Rural Fire Brigade. Other written testimonials were received from other firefighters. These were Murray Steep, Jon Russell (Captain of the Cottage Point Brigade) and Dave Sargeant (Captain of the Wilberforce Rural Fire Brigade). They commonly opine that he is a well respected member of the local community who had rendered diligent and conscientious service to, but not limited to, the RFS. Both of the Brigade Captains noted the responsibilities reposed in the occupant of that office and commended the offender for the way he discharged his responsibilities.

  3. A slight concern that the Court is a pro forma element to the testimonials: both Brigade Captains used the exact expression ‘On a personal level, I know Michael is a loving and kind family man’. I note that neither of those children gave evidence in support of the offender. Nor for that matter, did his wife. Nevertheless, consistent with what I directed the jury in the trial, I accept that, as a matter of fact, he is a man of prior good character and that there is an absence of prior convictions. The offender’s Counsel urged upon the Court that his contribution to the community over 44 years is worthy of some recognition in the Court’s exercise of its discretion.

  4. However, the Crown submitted that by s 21A(5A) of the CSP Act, good character and the lack of prior convictions are not to be taken into account as a mitigating factor if the Court is satisfied that either factor assisted the offender in the commission of the offending. The offender’s Counsel disputed this and this dispute was arguably the most significant one in this sentencing hearing.

  5. 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. The offender’s Counsel, through his supplementary written submissions, referred to a passage in the same judgment by Hamill J (at [144]), who appeared to suggest a requirement that the Crown prove that the offender who ‘traded’ or ‘misled’ others into believing that he was of good character (or lacked prior convictions). This suggests to me positive conduct by the offender, which, with respect, strikes me as exceeding the approach favoured by Beech-Jones CJ at CL, who merely pointed to the requirement for a connection; and, specifically, (at [15]) proof of an ‘assessment’ by someone of the offender’s character (or absence of prior convictions). To the extent that there is a difference between the approach of Beech-Jones CJ at CL and Hamill J, I would, with respect, prefer the former’s view.

  6. At the sentencing hearing and over the offender’s objection, I permitted the Crown to rely upon witness statements of the victims’ mothers (Exhibits D and E), which I have also take into account in conjunction with the matters they had referred to at trial.

  7. A question arose during argument about the standard for proving engagement of s 21A(5A). Ms Crown referred me to the passage from Beech-Jones CJ at CL’s judgment in Bhatia, at [13], about there being a relatively low threshold for proof and his Honour’s reference to an evidential burden. But as I suggested to Ms Crown, it occurred to me that by invoking that statutory provision, the Crown was seeking to remove the capacity of the offender to rely upon matters hitherto regarded as being mitigating factors. It occurred to me that, consistently with Olbrich, the Crown should prove the facts which it relied upon for engaging the statutory provision beyond reasonable doubt. Ms Crown did not disagree.

  8. I am satisfied beyond reasonable doubt that the offender’s good character, in particular, assisted him in the commission of his offending. This appeared to be implicitly acknowledged by the offender at trial; where he portrayed himself as being responsible and, indeed, a pillar of the community – a local RFS ‘hero’ – who prudently made known to the mothers of the two victims his involvement in and role with the RFS – itself a badge of good character – and even went so far as to assure BJ’s mother that he had undertaken a ‘working with children’ check (T 413.8 - .18). BJ’s mother’s knowledge of his having that particular credential helped her to form an assessment of the offender’s good character. This was the functional equivalent of a reference to good character to which Hamill J referred to in Bhatia. His good character was of some assistance to the offender (Bhatia per Beech-Jones CJ at CL, at [14]-[15]). Accordingly, I do not treat his prior good character, itself, as a mitigating factor.

  9. I do not consider that the absence of convictions itself engages the statutory provision or adds anything more to the significance of the offender’s good character. It would be difficult to conceive that a person could remain an officer of the RFS if he or she was the subject of a conviction, at least of a serious offence, which suggests that the absence of convictions does not add more than his reputed good character. As Ms Crown persuasively argued, a working with children check would, if it was relied upon by the person receiving it, disclose the presence of an absence of convictions, so in this way, the absence of convictions is relevant. Further, as his Counsel did at the trial, I treat the absence of conviction as emblematic of (prior) good character.

  10. In short, by s 21A(5A), the offender is not able to rely upon his good character and absence of prior convictions as mitigating factors when considering the sentencing option and its length.

  11. In the alternative, I also accept the Crown’s submission that (on the basis that I am wrong about s 21A(5A) being engaged) even if prior good character could be taken into account (independently of its significance to other factors of the kind I have adverted to), the weight to be ascribed to it would be diminished for offending of this kind especially where, as here there was a substantial degree of planning and repeat offending (R v PGM (2008) 187 A Crim R 152 per Fullerton J (Spigelman CJ and Barr J agreeing) at [44]). The offender’s Counsel agreed with this in relation to the instant offending.

Absence of remorse

  1. The offender mounted a vigorous defence at trial. He denied any or all of the sexual activities against the two victims. It is pertinent to note that he enjoyed some success in that regard in relation to the victim, BJ and complete success on the single charge of another complainant, HH.

  2. Notwithstanding such success, he is to be sentenced on the charges upon which he was found guilty.

  3. He maintains his innocence and, unsurprisingly, shows no contrition or remorse for his offending. He is entitled to his position and is not to be punished for his beliefs, but by doing so, he foregoes the benefits of mitigation that are associated with a guilty plea and/or an expression of contrition.

Prospects of rehabilitation

  1. Prior to the trial, the Crown had served a tendency notice of the offender’s sexual interest in female teenagers and an associated tendency to act upon it when given the opportunity. Ultimately in her address to the jury, Ms Crown did not make anything of such sexual interest.

  2. It appears that the offender had not sought psychological or psychiatric help until 2021. He told Dr Canaris that he did not have any empathy and did or could not have friends.

  3. Dr Rodriguez considered that the offender’s prognosis was poor in terms of his psychiatric functioning.

  4. He also has a supportive brother, who lives nearby. It appears that notwithstanding the poor state of his marriage, his wife supported him in his defence to the charges.

  5. When I observed to Ms Crown that no submissions had been advanced on the offender’s behalf on this topic, she argued that the Court would be guarded on making any finding and emphasised his maintenance of innocence and lack of insight.

  6. In my view, this is an instance where no finding can be made about his rehabilitation prospects.

Likelihood of re-offending

  1. Dr Rodriguez opined that the offender did not have the usual characteristics found in persons with a paedophilic disorder or an ‘anti-social makeup’, but in view of the offender’s maintenance of his innocence, the professional considered that he required a longitudinal risk assessment for re-offending.

  2. The offender’s Counsel drew the Court’s attention to the offender’s compliance with his bail conditions (Exhibit 2). Those conditions, which were not unusual for cases of this kind, have been complied with.

  3. Although this evidence was not overwhelming, in my view on balance, it would be unlikely that he would re-offend.

  4. It is difficult to conceive that after he has served his sentence, the offender will be in a position to give vent to any latent residual sexual urges against young victims the subject of this proceeding.

Hardship

  1. This is a consideration for which the offender bears an onus of proof on the probabilities.

  2. Dr Rodriguez considered that the offender had high treatment needs and he believed that he was unlikely to obtain the treatment he needs. Other than receiving medication (a prescribed antidepressant) he was not receiving any mental health support or treatment in custody. Dr Rodriguez opined that deprivation of the treatment he needed was likely to cause him significant stress. These opinions assumed the correctness of the information that the offender supplied to him.

  3. The Crown, in response, relied upon part of (pp 3-4) a NSW Justice Health document on forensic mental network services (issued in September 2022) (Exhibit B). This relevantly described, in dot point form, the range of mental health services available to people in contact with the correctional centre. I place some weight on this document, but it is limited: it is descriptive of services, but says little, in itself, about the effectiveness of the delivery of the services.

  4. The offender’s Counsel made no submissions about this document when presented with the opportunity to do so. Nor did he seek leave to have the opportunity to adduce evidence about the offender’s own experience whilst under incarceration that would invalidate inferences that might be drawn about the availability of such services.

  5. The offender did not give direct evidence, that was capable of being scrutinised, about the extent to which he had been, or would likely be, deprived treatment. The assumptions that Dr Rodriguez made were based upon out of court statements from an offender convicted of serious offences characterised, amongst other things by a breach of trust.

  6. All this being said, the Crown did not dispute that he has PTSD. Whatever be the position in terms of his access to medical treatment, I accept that the custodial setting in which he has been placed will mean that his time in custody will be more onerous than it would be. Although the weight to this factor is limited when considering the length of the sentence, I propose to take this factor into account when considering the length of his non-parole period.

Instinctive synthesis

  1. I have also taken into account the maximum penalties and the standard non-parole periods, as applicable. It is manifestly not the case that a sentencing judge is to pay only lip service to these guideposts. There is no doubt about the inherently heinous nature of the charges committed against teenage children. I note, in particular, the especially high standard non-parole period for the offence of aggravated sexual touching relative to the maximum penalty. Both the maximum penalty and, where it applies, a standard non-parole period, represent legislative guideposts, 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].

  2. I also have taken into account the sentencing principles in s 3A of the CSP Act. Foremost in my mind is a sentence that attaches cardinal importance to general deterrence, adequacy of punishment, retribution and 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 repeatedly that their actions will not be tolerated and that they will receive significant punishment. Specific deterrence is reduced on account of his current mental health condition and the unlikelihood of his reoffending. The sentence should not be of such crushing length as to induce a sense of helplessness or despair; though this is a matter which in my view is more relevant to assessing the length of the non-parole period

  3. I am satisfied that the s 5 threshold is crossed. The offender’s Counsel realistically acknowledged that this was ‘inevitable’.

Totality

  1. I apply the principle of totality.

  2. The Crown submitted that there were 13 offences committed on two victims over the course of between 3 and 4 months. It submitted that substantial accumulation was appropriate because of the separate and discrete nature of the offending against the separate victims and to reflect the gravity of that offending.

  3. There is some scope for concurrency given the circumstances in which the offending constituting counts 1 and 2 (the offending occurring on the same day), counts 3 – (the alternative to) 7 (incl) (on the same camping trip, over the ANZAC Day long weekend) and 10 – 11 (same day) 13 - 14 (same day) occurred, against the same victim in what can be viewed as a narrow class of incidents.

  4. However, the offender has to be punished in a proportionate way to reflect his overall criminality. There were two victims and both were subjected to multiple offences on different occasions over a period (in the aggregate) of 3-4 months and the aggregate sentence must reflect the seriousness of the offending and the need to recognise the harm done to both victims.

Prior custody

  1. The offender was also in custody for a period from the date of his arrest until he was released on bail. He went into custody again after the jury returned its guilty verdicts. In all he has been in custody for 145 days in respect to these offences.

  2. The sentence will be backdated to take into account this period.

Special circumstances

  1. The offender is a first time offender who, given his age, and his health condition and the nature of his offending, is likely to find full time imprisonment especially onerous. I find that special circumstances arise.

  2. Indicative sentences are as follows:

Count 1:   1 year, 4 months’ imprisonment

Count 2:   3 years’ imprisonment (NPP 1 year, 10 months & 10 days)

Count 3:   4 months’ imprisonment [1]

1. Because of the length of this indicative sentence, there is no applicable non-parole period; s 46 of the CSP Act

Count 4:   1 year, 4 months’ imprisonment (NPP 10 months)

Count 5:    1 year, 6 month’s imprisonment (NPP 11 months & 8 days)

Count 6:   3 years’ imprisonment

(NPP 1 year, 10 months & 11 days)

Alt charge to count 7: 2 years & 6 months’ imprisonment

(NPP 1 year, 6 months, 24 days)

Count 8:   4 years’ imprisonment (NPP 2 years, 6 months)

Count 10:   1 year & 4 months’ imprisonment

Count 11:   1 year’s imprisonment

Count 12:   1 year & 6 months’ imprisonment

Count 13:   2 years & 6 months’ imprisonment

Count 14:   3 years’ imprisonment

Sentence

  1. Mr Scholz, please stand.

  2. You are convicted of counts 1, 2, 3, 4, 5, 6, the alternative charge to count 7, 8, 10, 11, 12, 13 & 14 on the indictment.

  3. You are sentenced to an aggregate term of imprisonment of 14 years imprisonment commencing on 29 January 2023 and expiring on 28 January 2037. The non-parole period is 8 years and 8 months expiring on 28 September 2031; after which you will be eligible for parole.

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Endnote

Decision last updated: 26 June 2023

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Cases Cited

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Statutory Material Cited

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Bhatia v R [2023] NSWCCA 12
Cheung v The Queen [2001] HCA 67
Cheung v The Queen [2001] HCA 67