I took some time thinking about whether I should report on this case. The point of reporting is to distil some lessons for emergency workers or the emergency services not merely to report for its own sake particularly where the particular facts are egregious and may be triggering.  But there are lessons to learn in particular:

1. The relevance of volunteer service to ‘good character’;
2. Warnings to those asked to write references; and
3. The relevance of PTSD.

The case

The case is R v Scholz [2023] NSWDC 222. Mr Scholz was the captain of a NSW Rural Fire Service fire brigade. On 15 March 2023 he was convicted by a jury of 13 sexual offences involving two high school children. The offences occurred between February and April 2021. He was sentenced to 14 years imprisonment with a non-parole period of 8 years and 8 months.  He will remain in gaol until at least 28 September 2031.

We do not need to report on all the facts other than those relevant to the RFS and his RFS service.  The victims, and another complainant, all knew each other from school.  They also knew the offender’s son through school. At least one of the complainants was an RFS cadet. The offending occurred in the offender’s car or during outdoor recreational activities – motorcycle riding, fishing, camping – rather than at or through identified RFS activities although on one occasion the offender and victim were together after the victim had assisted the RFS brigade during flood relief activities.

The relevance of volunteer service to ‘good character’;

A defendant’s good character can be raised in two contexts in the criminal process. An accused person may want to raise their ‘good character’ as part of their defence – in short “I’m not the sort of person who would have committed the offence alleged”.  It may also be raised in sentencing – a prior blameless life of service may mean that there is less need to deter an offender and everyone expects a ‘first offender’ to get a lesser sentence than a person with a long criminal history.  At [109] Aberdee DCJ said:

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 … and his activities in mentoring and incidental involvement in charitable fund-raising.

The problem is how to deal with ‘good character’ when it is that very ‘good character’ (or at least a reputation of good character) that allowed the offending to occur. The victims were ‘both young girls, who essentially lacked fathers’ ([37]).  The offender was trusted by the victims, and their mothers, because of his standing in the community and the RFS.  The Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5A) says:

In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

At [116] His Honour said:

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 … mother that he had undertaken a ‘working with children’ check. … mother’s knowledge of his having that particular credential helped her to form an assessment of the offender’s good character… His good character was of some assistance to the offender. Accordingly, I do not treat his prior good character, itself, as a mitigating factor.

Warnings to those asked to write references.

The offender had references from three other firefighters including two other brigade captains. At [110]:

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.

When writing a reference for a person before the court, the referee has to consider whether the reference is intended to support the argument that the person is ‘not guilty’ or to support a claim for mitigation of sentence based on their prior good character.  A reference that says ‘in my opinion this person is not the sort of person likely to have committed the offence charged’ is of no value if the person has entered a plea of guilty, or been convicted by a jury. 

Equally a reference that reads like a reference in support of a job application is of no value. As a practising lawyer I always advised clients that the referee need to acknowledge why the reference was being written – ie for the benefit of the court – and where it was to be used in sentencing it had to identify the offences.  The referee has to say “I know person x is appearing before you to be sentenced for these offences …., and even knowing that I’m still prepared to give this testimonial”.  If the referee does not know the offender is being sentenced for multiple child sexual offences, then their character assessment is of little relevance as they may have a different view if they did know what the offender had done.

Another important part of a reference is that it must express the author’s opinion.  As a lawyer I might have given a draft first sentence where it did set out the offences involved; but then ask the author to express their opinion of the offender given that knowledge. In this case His Honour said (at [111]) ‘A slight concern that the Court is a pro forma element to the testimonials: both Brigade Captains used the exact expression …’

If the offender, or the offender’s lawyer, writes the reference then they are of little value.  In this particular case the courts expressed only a ‘slight concern’ and nothing much turned on the particular common part of the reference, but it is a warning to anyone is asked to write a reference, and who wants to support a friend who is also an offender, to make sure they write their own reference in their own words.

The relevance of PTSD

It’s recognised that service with the emergency service is traumatising and many workers – volunteers and employed – will develop PTSD.  There is great sympathy for emergency workers who suffer those symptoms but there are limits to that. 

In this case (at [89]):

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.

At [100]-[102]:

All of the mental health professionals diagnosed the offender as suffering from Post-Traumatic Stress Disorder (PTSD)…

Professor McFarlane and Dr Nagesh also diagnosed him as having a Major Depressive Disorder…

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.

The court did not consider that this PTSD contributed to his offending. At [106]-[107] Aberdee DCJ said:

[The Crown Prosecutor] …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.

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.

General deterrence is the sentencing principle that the court should set a sentence that would or might deter others from committing similar offences.  Specific deterrence is the need to set a sentence to deter this offender from future offences. With respect to specific deterrence His Honour was of the view that the need for specific deterrence was reduced to the offender’s now acknowledgment of and attempt to get treatment for his PTSD (see [108]).  And at [138] His Honour 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.

PTSD and other mental illnesses can be relevant if they contribute to the offending, but the mere presence of a mental illness, including one caused by otherwise meritorious service is not a mitigating factor when it comes to sentencing.

Conclusion

This was a distressing case to read. The distress to the victims and their family must be immense. I suspect this case is also a cause of distress to members of the RFS, in particular members of Mr Scholz’s brigade, given the abuse of trust and perhaps their loss of confidence in their ability to judge character. 

The mere fact that an RFS member has been convicted of an offence is not necessarily something I need to report but I felt this case warranted a report given the close connection between the offender’s RFS service and the offending and the discussion of the relevance of his RFS service to his prior good character and PTSD.  The discussion gives some guidance of how and when RFS service may be relevant or, in this case, why it was not relevant.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.