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District Court 23 June 2023

R v Scholz

[2023] NSWDC 222

Sexual offences
CRIMINAL LAW SENTENCING SEXUAL OFFENCES SEXUAL TOUCHING OF CHILD AGGRAVATED SEXUAL TOUCHING AGGRAVATED SEXUAL ASSAULT

Citation: R v Scholz [2023] NSWDC 222
Court: District Court of New South Wales
Date: 23 June 2023
Judge: Abadee DCJ

Background

Following a jury trial at Parramatta, the offender was convicted of 13 sexual offences involving two teenage victims, both aged 15 at the time of the offending. The offences occurred between January and April 2021 across several locations in the Hawkins area of New South Wales. Both victims knew each other and attended the same high school.

The offender held a senior leadership position within a Brigade of the NSW Rural Fire Service. Both victims had connections to the offender through his son and through the social networks of a third complainant. The offender used his position and those connections to engage with the victims in a way the court characterised as grooming.

The offending spanned approximately three to four months and involved repeated conduct against both victims on multiple separate occasions. The charges included intentional sexual touching of a child, aggravated sexual assault (where the victim was under 16), aggravated sexual assault (where the victim was under the offender's authority), aggravated sexual touching, and one count of sexual assault without consent. The jury acquitted the offender on five counts.

  • What weight should be given to grooming and exploitation of authority as aggravating factors in sentencing?
  • How should prior good character and the absence of prior convictions be treated as potential mitigating factors where the offender held a position of trust?
  • What significance attaches to the offender's diagnosed Post-Traumatic Stress Disorder (PTSD) in the sentencing exercise?
  • How should the court approach fact-finding for sentencing purposes following a jury verdict, particularly where the jury acquitted on some counts?
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the total sentence.

Decision

Approach to fact-finding after the jury verdict. The District Court applied the principles from Savvas v The Queen (1995) and Cheung v The Queen (2001), noting that a sentencing judge may make independent factual findings provided they do not conflict with the jury's verdicts. The jury's guilty verdicts on counts concerning victim MC were treated as an acceptance of her credibility and reliability. In relation to victim BJ, the acquittals on counts 15 to 17 (relating to alleged conduct at a camp in April 2021) were interpreted as the jury declining to accept BJ's account of those specific incidents, while the guilty verdicts on counts 10 to 14 confirmed her credibility on the remaining offending.

Grooming, exploitation, and position of authority. The court identified grooming and the exploitation of authority as significant aggravating features. The offender's senior position within the RFS Brigade placed the victims, in a structural sense, under his authority, and this was reflected in several of the charges themselves as a statutory circumstance of aggravation. The court treated the deliberate cultivation of trust and access as conduct that elevated the seriousness of the overall offending.

Good character, PTSD, and other personal factors. The court acknowledged the offender's prior good character and the absence of previous convictions but gave these limited mitigating weight, consistent with the principle that good character carries reduced significance where the offender has used a position of trust and authority to facilitate the offending. The offender's PTSD diagnosis was accepted as a relevant factor. The court found that, as a first-time offender of mature age whose health condition would make full-time custody especially onerous, special circumstances existed to justify reducing the non-parole period below the standard proportion.

Aggregate sentence. The court imposed indicative sentences on each count and then constructed an aggregate sentence reflecting the totality of the offending. The offending involved two victims, repeated conduct over several months, and multiple distinct occasions. The court noted the need for the aggregate sentence to reflect the seriousness of the overall criminality without resulting in a crushing or disproportionate outcome. The sentence was backdated to account for 145 days already spent in custody.

Orders Made

  • The offender was convicted of counts 1, 2, 3, 4, 5, 6, the alternative charge to count 7, 8, 10, 11, 12, 13 and 14 on the indictment.
  • An aggregate term of imprisonment of 14 years was imposed, commencing 29 January 2023 and expiring 28 January 2037.
  • A non-parole period of 8 years and 8 months was set, expiring 28 September 2031, after which the offender is eligible for parole.
  • The sentence was backdated to account for 145 days of pre-sentence custody.

Key Takeaways

  • A senior leadership role within a community organisation such as the RFS can constitute both a statutory circumstance of aggravation and a broader aggravating feature where the offender exploited that authority to access and groom child victims.
  • Prior good character and the absence of previous convictions carry diminished mitigating weight in sentencing for sexual offences against children where the offender's standing in the community was itself a tool of the offending.
  • Where a jury acquits on some counts but convicts on others involving the same victim, the sentencing court can interpret those acquittals as reflecting a targeted rejection of specific factual allegations without undermining the victim's general credibility as established by the remaining guilty verdicts.
  • A diagnosis of PTSD, advanced age, and first-offender status can collectively constitute special circumstances warranting a reduction in the non-parole period below the standard statutory ratio, even in serious sexual offending matters.
  • Aggregate sentencing requires the court to balance recognising the full criminality of offending against multiple victims over an extended period against the principle of totality, ensuring the overall sentence remains proportionate.

Legislation and Cases Referenced

Legislation

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

Cases