R v Scott

[2022] NSWDC 663

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Scott [2022] NSWDC 663

Hearing dates:

28/6/22-7/7/22, 14/7/22, 30/9/22, 21/10/22

Date of orders:

21/10/22

Decision date:

21 October 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to a fixed term of imprisonment of 1 year 10 months (12/2/21-11/12/22).

I note that the offender is currently serving an existing head sentence for other offences, which expires on 12/3/27. Whether or not the offender is release to parole on 11/12/22 will be a matter for the State Parole Authority to determine.

Catchwords:

Crime – Sentence – Male teacher have homosexual intercourse with male pupil aged between 10 and 18

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Obbens [2022] NSWCCA 109

R v Todd [1982] 2 NSWLR 517

Category:

Sentence

Parties:

NSW DPP – Crown
Peter Wayne Scott - Offender

Representation:

Mr J Mehta for Crown
Mr Z Khan for Offender

File Number(s):

20/341820

Publication restriction:

Non-publication order in relation to the identity of the victim and any other witnesses who were children at the time of the offence.

sentence

1. The offender stood trial on a judge alone trial before myself from 28 June 2022 until 7 July 2022 on two charges. The first one being that between 1 and 31 December 1984 he unlawfully caused the complainant to ingest a stupefying drug with the intent to enable him to commit an indictable offence of sexual assault. The second charge being that between those same dates he did have homosexual intercourse with the complainant, a male person above the age of ten and under the age of 18 years, namely 16 years of age, during a time when the offender worked as a school teacher at Cromer High School and the complainant was a pupil.

FACTS

2. On 14 July 2022 I found the offender not guilty of count 1 but guilty of count 2. The maximum penalty for that offence is 14 years imprisonment. The maximum penalty is of course an important guidepost in the sentencing exercise, to which I have had regard.

3. The facts must be determined based on the evidence at trial. Any matters in aggravation must be proved beyond reasonable doubt and matters in mitigation, on the balance of probabilities. The detailed facts are taken from my verdict and reasons of 14 July 2022, but in essence the relevant facts for sentence are as follows.

4. The offender was born on 13 November 1950 and was 34 years of age at the time of the offence. In 1984 he worked as a teacher at Cromer High School. The complainant was born in 1968 and started year 7 in 1981 at Cromer High School. In 1983 when he was in year 9 the complainant started taking part in extracurricular activities, which included school musicals and it was through his participation in these that he met the offender. The complainant became involved in a rock band in which he was the singer and the offender was also involved with the band in that he helped teach the boys how to play the instruments and songs. The band used to practise at school, sometimes at lunchtimes and other times after school or on weekends.

5. The offender, who played guitar, was very encouraging of the complainant and also had a production company through which he used to produce videos for bands, including the Australian band Mental as Anything. The offender owned a blue van which had the name of his production company "B Sharp Productions" on the side, which he used to carry musical and other equipment.

6. One of the complainant's best friends was OF who lived with his family not far from the complainant. In September 1983 OF's parents moved to the Hunter Valley to run a bed and breakfast and let OF and his sisters stay in the house. The offender at this time took on a role of a quasi-guardian of OF's and his sister, and for a time lived in the house with them. From around this time the complainant spent a lot of time at OF's house and there was a lot of freedom, which included parties and the use of alcohol and cannabis.

7. The offender was often at these parties and would purchase alcohol for the young people and also supplied them with cannabis which they would smoke together. The complainant would also regularly smoke cannabis with the offender in his van. The complainant looked up to the offender as his own father was a hard man with fixed beliefs and was not encouraging in relation to singing and dancing or acting and the complainant felt that he could talk to the offender about things which he could not discuss with his father.

8. On one occasion when they were driving in the van the offender asked the complainant if he masturbated and suggested that that was something he should be doing at his age and also asked if he was a virgin, which the complainant said he was. On another occasion the offender took the complainant and OF to his apartment in Sydney where he gave them alcohol and put on pornographic videos. The offender would also take the complainant, and sometimes other boys as well, to see various rock bands.

9. In December 1984 the offender took the complainant to see a band at a pub somewhere in the city where they drank some alcohol. Late that evening or early the next morning, the offender drove to a car park at a beach somewhere around Sydney where the offender rolled a joint which they shared. After this, the complainant was light-headed and was not feeling well. The offender suggested that he lie down in the back of the van which he did.

10. Sometime after this the offender joined the complainant in the back of the van and commenced to rub the complainant's upper thigh with his hand. The complainant was shocked and essentially just froze. The offender, however, then rubbed the complainant's genital area through his pants and then pulled down the jeans he was wearing after which he started fondling the complainant's genitals before putting the complainant's penis into his mouth.

11. While all this was going on, the complainant was trying not to get an erection but eventually he did, although he later lost the erection. The complainant remained frozen throughout the episode and essentially did not move. However, once the offender had stopped touching him he started to move or shuffle around in an attempt to show the offender that he was awake.

12. At this stage the offender said something like, "It's okay, it'll get better next time, it's okay". The complainant did not reply and did not look the offender in the eye, but after saying these words the offender pulled up the complainant's pants, got out of the van and drove the complainant home with the complainant remaining in the back of the van. The complainant did not tell anyone about the incident as he was ashamed and embarrassed. After this, although he had to continue having contact with the offender through school activities, the complainant avoided being alone with the offender in a similar situation.

13. In December 1990 the complainant and one of his friends visited the offender where he was living in Byron Bay. Although it was the complainant's intention to confront the offender about what had happened six years earlier, he did not end up doing so as he just "couldn't bring myself to bring it up", and decided he would try to bury it and never see the offender again. However, on 27 July 2018 the complainant attended a charity golf event with some of his old school friends and afterwards they went for drinks at the Time & Tide Hotel in Dee Why.

14. At that time the complainant and his friends were aware of publicity referring to allegations against the offender dating to when he was a teacher at Cromer High School. This led to the complainant telling his friends, "I'm one of Peter's victims". Sometime after this, which was probably in about 2019, the complainant was contacted by police and ultimately made his first statement on 26 February 2020. Those are the facts upon which I proceed to sentence.

OBJECTIVE SERIOUSNESS

15. In determining the seriousness of the offence I must have regard to a number of factors. An important guidepost is of course that at the time it was committed the offence carried a maximum penalty of 14 years imprisonment. However, it is important that I also have regard to the nature of the homosexual intercourse and various other matters that inform the objective seriousness of the particular example of the offence before the Court.

16. The form of intercourse was that the offender performed fellatio on the complainant. While there is no fixed hierarchy of intercourse offences, fellatio must be regarded as a serious offence, although in most cases less serious than intercourse occasioned by anal penetration. The offence did not result in the complainant ejaculating, which if it had occurred would have made the offence more serious. However, in my view this was not due to any reluctance in the offender to avoid or stop the complainant from ejaculating, but was due to the complainant's horrified reaction at what was happening, and to his own self-control.

17. Although I am unable to determine the exact length of time over which the offence took place, it was certainly not fleeting or brief and was preceded by the offender rubbing the complainant on the inner thigh and then over his genital area prior to pulling down his jeans. The offence was obviously committed for the purposes of the offender's sexual gratification, but as submitted by the offender, the offence was not accompanied by violence or threats or inducements to the complainant to conceal the offending.

18. I am satisfied that the offence was preceded by a degree of planning by reason of the offender taking the complainant in his van to a private location in the middle of the night and providing him with cannabis, which the offender no doubt thought likely to lessen any inhibition in the complainant. In making this observation I remain conscious of the fact that the offender was found not guilty of count 1. However, that was because I was not satisfied that the drug the complainant ingested affected him to such an extent that he was in fact stupefied.

19. I am conscious of avoiding “De Simoni error”, however in my view no such error is made out by my having regard to the offender's use of the drug with the intention, as I have said, of lessening the complainant's inhibitions and making him more likely to go along with the offender's actions, or at least not protest them. Somewhat similarly, the offence was preceded by earlier events in which the offender exposed the complainant to pornography and questioned him about his sexual experience, including masturbation.

20. In my view these actions by the offender were an attempt to desensitise the complainant to sexual matters, reduce inhibitions and amounted to a form of grooming. The offending also involved a breach of trust, which went beyond that inherent in the teacher/pupil element of the offence. That is because the relationship between the offender and the complainant went beyond that of an ordinary teacher and pupil relationship, and had progressed by reason largely of the actions of the offender and the psychological needs of the complainant, to a situation more akin to uncle and nephew, or perhaps father and son.

21. As I noted in my verdict reasons, the complainant looked up to the offender and not just as a teacher but as a role model and as a person who encouraged him and spoke to him about matters which he could not discuss with his own father. I am conscious of the need to not double count this aspect, given that any offence under s 78N of the Crimes Act 1900 involves the inherent breach of trust and authority that goes with any teacher/pupil relationship. However, I remain satisfied for the reasons I have set out that the facts in this case go beyond the traditional sort of teacher/pupil relationship.

22. At the time of the offence the complainant was 16 years old which placed him slightly under the upper threshold age of 18, which is an element of the s 78N offence, although well above the minimum age of ten years for that offence. On the other hand, the offender was 34, being more than twice the complainant's age. This considerable age differential increased the power imbalance between the complainant and the offender which, combined with the offender's position of trust and authority, rendered the complainant more vulnerable to the sort of abuse to which the offender subjected him.

23. It was submitted by the Crown that substantial harm has been caused by the offence, and that this is an aggravating matter under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. Counsel for the offender, however, submitted that any harm does not rise above that ordinarily to be expected from such an offence.

24. In accordance with principle, I approach this question and the contents of the Victim Impact Statement, which was not subject to cross-examination, with caution. However, while remaining conscious of that need for caution, I am satisfied that the offence in this case has produced substantial harm. In this regard, I had the opportunity not only to see the complainant read out his very eloquent Victim Impact Statement, but also to observe him giving evidence in the trial.

25. While it is generally accepted that sexual offences against child complainants usually have significant and lasting adverse effects, some complainants obviously will be affected more seriously than others. This is likely to depend on a range of factors, including the nature and duration of the offending, as well as the background of the complainant, and any particular vulnerabilities that the complainant has. Each case will depend on its circumstances.

26. In this case the complainant was an extremely shy young man who was encouraged by the offender, and he was effectively brought “out of his shell” by the offender, such that he became comfortable with public performance and very competent in being able to act, dance and sing in school musicals and in a rock band. The complainant found in the offender a mentor who connected to him through this encouragement through music, through making available alcohol and cannabis, and in just being one of the crowd.

27. However, and as the complainant said in his Victim Impact Statement, this was "all just to set me up so that he could have his way with me". That conclusion flows not only from the complainant's words but from the fact that the offender was committing similar offences against other boys around the same time, and continued to do so for another couple of years. It is hardly surprising therefore that the complainant described a deep sense of betrayal and of being wronged and cheated.

28. The complainant also explains a sense of guilt in not having said anything, and his belief that other boys would not have been abused if he had done so. That sense of guilt is, with the benefit of hindsight, understandable in a person who is now an adult. But at the relevant time the complainant was an insecure 16 year old youth, and in the circumstances was in a quite helpless situation.

29. At that time there was no way the complainant could have known that the offender was abusing other boys, and in relation to the offence before the Court, the complainant had only his word against the word of a popular teacher. Although it is now well-known in our society that sexual offences of this kind were and are all too common, that was not necessarily the perspective in the early part of the 1980s, when few people would have thought a trusted teacher would be capable of such things.

30. As a 16 year old boy the complainant acted as you would expect, shocked, confused and wanting to pretend that this offence had not happened. It is hardly surprising that he told no-one about the abuse, particularly in circumstances where the offence involved another male and the stigma that attached to homosexual activity in the 1980s. It is for this same reason that it is completely understandable that the complainant questioned his own sexuality, and that the offence has had a very adverse impact on his life and personal relationships.

31. In summary, I am satisfied that the offence has resulted in substantial harm to the complainant, going beyond that ordinarily to be expected from such an offence. It has affected him in almost all areas of his life, including study, work and relationships, and led to a long term problem with drug and alcohol abuse, which the complainant at age 54 is only now coming to understand and manage.

32. In my view, having regard to the facts and other matters I have discussed, the objective seriousness of the offence lies around the mid-range or slightly below that range.

SUBJECTIVE MATTERS

33. Turning then to subjective matters. The offender is now 71 years of age. He has been in custody since 13 March 2014 in relation to matters for which he was sentenced on 2 May 2014 by her Honour Judge Huggett of this Court. He is supported by a range of testimonials including from his daughters, his younger sister, and a long term family friend, each of whom described their contact with the offender in very positive terms. While these views do not in any sense lessen the seriousness of the offending, the fact that the offender has these supports is a matter I have taken into account in considering his prospects of rehabilitation.

34. In terms of his background, he completed a Diploma of Teaching specialising in physical education and art, and first worked as a teacher in Western Sydney before moving for some months with his then wife to London. On return to Australia he worked in several schools before starting at Cromer High School in 1982 where he was a respected and liked teacher. It goes almost without saying, however, that these feelings of respect and fondness were the very things that assisted the offender gaining the trust of this complainant and of various other victims.

35. The offender had no criminal convictions until he was sentenced in 2014 by Huggett DCJ. As her Honour observed, the offender was, at the time of the first offence he committed in 1984, entitled to be regarded as a person of good character. However, given the offences dealt with by Huggett DCJ, some of which preceded the offence involving the current complainant, the offender is not entitled to be regarded as a person of good character for the purposes of this offence.

36. I take into account in relation to the offender that as set out in his affidavit of 22 September 2022, he has a number of health issues which have, and will continue to make, any time in custody more difficult than if that had not been the case.

REMORSE AND REHABILITATION

37. Turning to questions of remorse and prospects of reoffending and rehabilitation. The offender apparently still denies his guilt and so there is no remorse. He has been assessed, according to a parole pre-release report of December 2021 as being a medium or average risk of reoffending. Given his advancing age, and his likely limited opportunities of having contact with young males in the future, it seems to me that his risk of reoffending is low to medium.

DELAY

38. In this matter there has obviously been a significant delay between the offending and the matter being brought to charge. Not only that, but it is a situation where the offender is, several years after being sentenced in 2014, and then resentenced after appeal in 2016, now been dealt with for an additional offence that was committed around the same time as those earlier offences. As was said by Street CJ in R v Todd [1982] 2 NSWLR 517, "Sentencing for a stale crime long after the committing of the offences calls for a considerable measure of understanding and flexibility of approach."

39. However, each case will depend on the circumstances and delay does not operate automatically to mitigate the sentence. As was said in the joint judgment of Hamill and Dhanji JJ in R v Obbens [2022] NSWCCA 109, in such cases delay will be of limited impact because the offender will have, during that delay, enjoyed the benefit of a place in the community to which the offender was not necessarily entitled.

38. As their Honours said, the situation might be different however, where a person has been in prison for multiple offences and then after serving that sentence, additional offending has been brought to light. In that situation the delay is unlikely to have been a period during which the offender has gone about life free from opprobrium. As their Honours also said, the bringing of a further prosecution with the potential for a return to imprisonment is an additional stress and disruption that would not have occurred if all the offending had been dealt with together.

39. The situation in the matter before me is not one where the offender has been released and is now facing the prospect of being returned to custody. However, I am conscious that he has already served the entirety of his earlier non-parole period, which had expired sometime before the trial before me commenced. I have taken into account this fact, and the principles to which I have referred in determining the overall sentencing outcome, and in particular the extent to which any custody that I impose ought to be cumulative upon that previously imposed.

THE PANDEMIC

42. I have taken into account also that the last two years or so of the offender's period in custody has been much more difficult than it otherwise would have been by reason of the impacts of the COVID pandemic. Any period of custody which is imposed for the offence before the Court will also be served during that pandemic. The effects of the pandemic have been, to my knowledge, very significant for many prisoners, if not most prisoners, especially in 2020 and 2021.

43. This is also confirmed by the report of Dr Ellis dated 29 August 2021 which was placed before me on behalf of the offender and which discusses the impact, or possible impact, on prisoners by reason of the pandemic. Those impacts have included frequent lockdowns, restricted or no access to visits, or electronic communication with friends and family, limitations on access to programs, work and medical treatment, as well as the anxiety associated with the risk of catching the disease.

44. The affidavit of the offender confirms that he has been subject to these same, as well as other, significant difficulties during his time in custody to date, and I accept that any future time in custody may involve similar problems to some degree.

DETERMINATION

45. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that the only appropriate sentence is one of full-time imprisonment.

46. In determining the period of imprisonment I have had regard not only to my own assessments of the appropriate term, but importantly also to some of the indicative terms nominated by Huggett DCJ. Those indicative terms were selected by her Honour after a careful examination of not only the offending and the offender, but also an examination of principles to be applied when sentencing for old offences like those before her Honour, and like the offence now before me. In this regard, there is some reasonable comparison with the indicative sentences nominated for the s 78N offences committed by the offender on SS, each of which were terms of three years and six months.

47. However, there are differences between the offences involving SS and the offence involving the current complainant. Most relevant of those differences is the fact that SS was slightly younger than the current complainant, and that the fellatio counts relating to SS involved ejaculation, either by SS or by the offender. These are matters that increase somewhat the seriousness of the offences committed on SS, as compared with the offence before the Court today.

TOTALITY

48. The offender is currently serving the term of imprisonment which was imposed when he was resentenced by the Court of Criminal Appeal on 3 March 2016. Under that sentence he became eligible for parole on 12 March 2021, but has been refused parole to date because of what were then outstanding charges that were the subject of the trial before me. His current head sentence does not expire until 12 March 2027.

49. It is necessary therefore that I examine the overall effect by reference to principles of totality and/or proportionality of any sentence that I intend to impose in light of the sentence currently being served. In applying those principles I have considered whether the penalty for the offence before the Court should result in the period of custody imposed on the offender being increased, or whether the penalty already imposed on him adequately encompasses all of his criminality, including that now before the Court.

50. The offence before the Court was committed within the period of the offences for which the Court of Criminal Appeal resentenced in March 2016, which offences involved somewhat similar types of offending against boys from the same school. However, the offence now before the Court involves a serious near mid-range offence of sexual intercourse with an additional complainant to whom substantial harm has been caused.

51. In my view the sentence currently being served by the offender, the non-parole period of which has already expired, is not such as to adequately encompass all of the offending when regard is had to the additional criminality of the matter for which I am imposing sentence. In my view, an additional period of actual custody is required.

52. I have also given close consideration to the date on which the sentence that I will impose should commence. The commencement date I have selected is intended to reflect the minimum additional period that I consider the offender should serve in custody, having regard to totality and proportionality, the purposes of punishment, and the objective and subjective features of this case.

53. I intend to impose a fixed term rather than a head sentence and non parole period. The reason for that is that any head sentence that I could impose would be totally subsumed within the head sentence of the term that the offender is currently serving, which does not expire until 12 March 2027. The fixed term that I will impose is intended therefore to reflect the non-parole period that I would have imposed. Had I not imposed a fixed term, I would have, by reason of the matters I have already referred to, imposed a head sentence of three years four months.

54. I impose a fixed term of one year ten months. That fixed term, which is intended to reflect the non-parole period that I would have imposed, has been calculated having regard to the ratios that were applied at the time of the offending, as referred to in the reasons of Huggett DCJ, and having regard also to the ratio set by the Court of Criminal Appeal in resentencing the offender in March 2016.

55. I order that the fixed term of one year ten months commence on 12 February 2021. It will therefore expire on 11 December 2022. The offender will, of course, remain subject to the existing head sentence until its expiry on 12 March 2027. Whether or not he is released to parole on 11 December 2022 will be a matter for the State Parole Authority to determine.

56. Ms McDonald, any obvious errors?

57. MCDONALD: There are no errors on my behalf, thank you.

58. HIS HONOUR: Mr Khan, you do not have any comments to make?

59. KHAN: No. I was just checking the dates, but it all looks fine to me, thank you.

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Amendments

29 September 2023 - Amended date of birth

Decision last updated: 29 September 2023