R v Scholz

Case [2023] NSWDC 222


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…

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Details
AGLC
R v Scholz [2023] NSWDC 222
Case
[2023] NSWDC 222
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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