R v Schnorrenberg

Utility Discount

1. He pleaded guilty in the course of proceedings in the Local Court, conducted under the early acceptance of guilty plea arrangements recently enacted, and thus, for the two principal offences a discount of 25% must be applied to the sentences that would have otherwise been imposed.

Pre-Sentence Custody

1. He has been in custody for this misconduct since the date of arrest on 16 July 2019; the sentence I impose today must commence on that day.

Form One Offence

1. I have reviewed the guideline judgement dealing with offences to be taken into account and how the Court should approach consideration of those matters. The sentence that would have otherwise been imposed on the principal offence in which the additional offence is to be taken into account will be increased to reflect the impact of the additional offence, reflecting the weight that should be given to aspects of personal deterrence and the community's entitlement to have the full range of misconduct upon which the offender engaged brought to account.
2. The guideline judgement is the decision of the Court of Criminal Appeal in Attorney‑General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. The impact must be more than marginal when I bring the additional offence to account because of the nature of the misconduct that was involved in that additional offence and the circumstances in which it was committed.

The Circumstances of the Offences

1. The offender was aged 39 at the time of the offences, born in 1979. The victim was aged 15. The offences occurred over 3 September and 4 September 2018 at the offender's premises in Bankstown. The offender and the victim were unknown to each other before the occasion when they met on 3 September 2018, almost immediately before they went to the offender's unit.
2. The events leading up to the offences began at about 1.30pm on 3 September 2018, Sunday. The victim went to the Bankstown Central Shopping Centre and drew some money from an ATM. She was captured on the closed-circuit television system installed there. She sat on a chair near to the ATM for about ten minutes before the offender approached her. The facts include a still image showing the victim seated in that location with the offender standing to the front of her. He approached her and said, "Did anyone tell you you've got a nice arse?" She replied, "Yeah". He said, "I'm following you" and told her that he was 30 years old. This was clearly a misrepresentation. She told him that she was 15 years old. They were captured on closed-circuit television walking through the Bankstown shopping centre; there are still images depicting them doing so in the statement of facts.
3. He took her to the car park to look for his car, which he was unable to find. They were once again captured on closed-circuit television walking in the direction of the indoor car park. They walked across to the McDonald's over the road from the shopping centre in Rickard Street. She met a male named Sam and from him purchased two sticks of cannabis for $50. The offender told the victim that he would wait for her at the McDonald's and she returned 20 minutes later to where he was waiting. The CCTV footage from McDonald's depicts the victim walking along the street past that establishment with the offender running after her about 45 seconds later. He is then depicted returning to McDonald's and loitering in the outside dining area; there are further still images of those events included in the document.
4. After she returned to the McDonald's the offender said, "Come to my house, I'll take care of you." She replied, "I have somewhere to be". The offender said, "Just come". The victim walked to the unit with him about two minutes away from the McDonald's. Once at the unit they watched television and smoked marijuana. There was no-one else there.
5. About 7pm a friend of the offender came to the front door and delivered a Lebanese pizza and a bottle of coke. The offender did not admit that person. The victim did not see that person. At some stage thereafter the offender said, "Fuck it, let's just go in the room" and took the victim by the hand and walked her into the bedroom. He was behind her, cuddling her.
6. The facts then proceed to deal with the offence on the Form 1. The offender sat the victim on the bed and removed her pants and underpants and removed his own clothing. The offender stood in front of the victim and told her to suck his penis and he put his penis into her mouth and held her by the hair. The offender asked the victim to call him Daddy. After about 15 minutes the offender ejaculated into the victim's mouth. He did not wear a condom. The victim became upset and went into the lounge room. He followed her. They remained in the lounge room where they watched television before they went back to the bedroom; there the offender removed the victim's clothing once again.
7. The facts then proceed to summarise the conduct charged under sequence 7. The offender had penile/vaginal sexual intercourse with the victim while she lay on the bed and he was on top of her. He later changed position and continued sexual intercourse while she was on top of him. The victim recalls this to have lasted for one hour. During the sexual intercourse the offender told the victim to say, "I want you to come inside my pussy, Daddy". The offender did not wear a condom and ejaculated inside the victim's vagina. The victim went to sleep at 11pm in the offender's bed and woke at 6am the following day.

[At this point the Offender and his legal representative challenged the agreed facts I had been rehearsing asserting they were not the final version of the agreed facts between the parties. The Crown then tendered Exhibit B which was the agreed facts in its final form signed by the Offender, the judgement continued with reference to that document.] [2]

1. I had reached paragraph 30 as I recall. I'll repeat those particulars so that the judgement can be understood.
2. After the second episode of sexual intercourse on 4 September 2018, the victim had a shower, left the offender's unit about 8am or 8.30am when he told her to leave. Before she left he asked for her phone number and she provided it. She went to the McDonald's restaurant where she sat outside until about 9am and thereupon attended the office of the Department of Community Services and spoke to staff member Rose Souaid. The victim attended the Corner Youth House at Bankstown and disclosed what had occurred to a staff member named Linda and she contacted police. The victim was taken to Liverpool Hospital where she underwent an SAIK examination.
3. The victim's clothing and underwear were seized and submitted for forensic analysis. Semen on the front crotch area of her underpants was identified and that matched the DNA profile of the offender.
4. On 5 September 2018 the police obtained CCTV footage from the Bankstown Central Shopping Centre which depicts the offender and the victim on 3 September 2018. On 14 September 2018 the victim was interviewed by officers at the Bankstown Child Abuse Unit and on 25 September 2018 police obtained CCTV footage from McDonald's depicting the offender and the victim on 3 September 2018.
5. On 16 July 2019 the police executed a search warrant at the offender's home and seized a jacket and red track suit pants matching clothing worn by the offender as depicted in the closed-circuit television footage gathered. He was cautioned and arrested and was taken to Bankstown Police Station. He participated in an electronically recorded interview and told police that he lived at the unit alone, that he had been there for some 36 years, but then declined to comment further with regard to the offences alleged against him. He does not bear any consequence as a result of his decision to exercise his right to silence. He is entitled to have done so and it does not impact at all upon the assessment of the sentence that must be determined.

The Offender

1. He has a record of antecedent offences, the first of which was determined in a Court in July 1999 when he was charged with larceny; he was ordered to enter a recognizance pursuant to s 558 Crimes Act 1900 as it then was. At the same time he was dealt with for obtaining money by deception and for that offence he was ordered to perform community service.
2. In November 2000, for concealing a serious indictable offence he was fined. In September 2001, for failing to appear he was fined. In August 2001, for supplying a prohibited drug he was ordered to serve periodic detention and for possessing a prohibited drug was fined. In March 2000, for larceny he was ordered to submit to a recognizance pursuant to s 558 Crimes Act 1900. In March 2000, for having custody of a knife in a public place he was fined. In April 2001, for driving while suspended on two occasions and for driving an unregistered vehicle and displaying an unauthorised numberplate; in each case he was fined. In April 2001, for driving on an expired licence he was fined and for possessing a prohibited drug he was fined. Finally in July 2001, for wilfully obstructing an officer in the execution of duty he was fined.
3. As was put to me in the course of submissions, he has not been in court for any criminal offences for almost 20 years, and apart from the community service and periodic detention he has not been required to surrender his liberty.
4. There is a Sentencing Assessment Report in the Crown bundle which was prepared upon an interview with the offender. There was a pre-sentence consultation by forensic psychological services; the author had also the police facts and his antecedents and his corrective services record.
5. He reported an isolated lifestyle, with his only family member his sister who lives in London. His mother pre-deceased his father, who in turn died from liver cancer in 2012. His father was alcoholic and when he was alive the offender was main carer. He has no dependants and his last long-term relationship of two years ended about three years ago.
6. After completing year 11 at school he was employed mainly in labouring, warehouse and retail roles, and before entering custody he was supported by Newstart benefits for a period of six months; he spent most of his free time looking for work. His antecedent record is summarised with notation that he has had no charges for about 20 years.
7. Beneath the heading Attitudes, the following is written: "Mr Schnorrenberg stated that he believed the victim to be of legal age, adding that he was so sorry, and that he was disappointed as he had been doing so well for such an extensive period."
8. That representation, in terms that he believed the victim to be of legal age, he appears to have abandoned in the light of other material that has been tendered to me.
9. He said he had not used cannabis or marijuana for some 18 years. His risk of sexual reoffending is said to fall within the average range. He said he received antipsychotic medication during 2015 to 2018 to assist him managing bipolar disorder. I have no further material, including from a psychiatrist in relation to that. He has been experiencing depression in custody and has asked that he not be medicated. He will be placed on the Child Protection Register when he is released.
10. With regard to insight, the following appears: "Mr Schnorrenberg commented that he now realised his actions were wrong, he apologised and added that he should have been more careful."
11. He would comply he said with support and direction in relation to supervision and would abide by a community service work order.
12. There were some failures with regard to his obligations under conditional liberty extended to him in the past, but over time his response improved. He has had one internal charge in custody for an altercation with a cell mate in October last year, but is not seen to be a management problem. He is assessed with a medium risk of reoffending according to the Level of Service Inventory - Revised (LSI-R) and an average risk upon the Static‑99R assessment. There are recommendations with regard to supervision and conditions. He is suitable for community service work according to this report.
13. The offender has not given evidence, though he was not reticent in bringing the Court's attention to matters that are of concern to him, demonstrated when I was rehearsing the facts in this judgement and referred to matters that had been, by agreement, excised from the original iteration of the agreed statement of facts. I went through the document that I had and confirmed those parts that should be excised, and I shall come back to those when I deal with where I should place this offending on the scale of seriousness.
14. In his case there is a report from a psychologist, Tom Jones, bearing the date 4 August 2020. This refers to his present circumstances, and the absence of any family apart from his sister who lives in London. He is said to have no friends. His father was of German origin and his mother Egyptian. His father was an alcoholic and was abusive toward him and his mother, including violent behaviour. They separated when he was young and he lived with his mother until she died in 1988 when he was aged nine. He said that he has never recovered emotionally from her death, after which he and his sister were raised by their father. He gave up interest in school and then performed poorly there. His highest vocational qualification is said to be Responsible Service of Alcohol and Responsible Conduct of Gaming certificates.
15. He was vague when asked about his work history. He spoke of having done some supermarket trolley collecting and assistance with fencing, but had been mostly unemployed since leaving school. He had one or two convictions 20 years ago, but did not serve time in prison previously. That is not strictly accurate because of his sentence for periodic detention and he has more than one or two convictions.
16. He denied any history of drug or alcohol abuse. His father was diagnosed in 2007 with liver cancer when the offender was 28. He became his father's carer until mid-2012 when his father died. Thereafter, the offender became isolated and depressed. He then spoke of a friend, a Mr Dennaoui, who passed away in early 2018. He worked with Mr Dennaoui building fences. The loss of his friend caused more depression and isolation, and he blamed himself for not having insisted that his friend seek medical help for symptoms that were afflicting him.
17. He said he was attracted to adult women, but had avoided them not trusting that he would be successful. He said he had had a few episodes with women which had been brief, and had no long-term girlfriends. That representation is also, at least to some extent, at odds with the facts surrounding these offences as I have described them after the excision of the passages over which there was objection.
18. He said he had been unhappy since early childhood after his mother's illness and death and his father's drinking and violence and neglect. He said that Centrelink had directed him to seek mental health treatment from Bankstown Community Health Centre in 2014. He saw a psychologist whose name he could not recall from about two years from 2014 and a psychiatrist, Dr Stewart Saiker, over the same period. He took psychoactive medication but could not recall the name of it. He persisted with that until a couple of years ago. I have no material from either of those practitioners.
19. Before the offences in 2018 he said he felt sad every day. He could not enjoy activities. His sleep had been erratic, he had poor concentration and continued to blame himself for this friend's death and had recurrent thoughts of death. He was unemployed during 2018 after the death of his friend and employer, Mr Dennaoui. He lived alone in the same premises that had been occupied by his mother prior to her death and, upon his account, had engaged in no contact with friends or organised activities apart from attending church. He said that he was a Coptic orthodox, his mother's religion, and that he attended church each Sunday. When he was asked to name his church he gave the name of a catholic church in Bankstown but could not name any of the priests there.
20. When asked about the offences he said, "I knew she (the victim) was under 16. I knew it (the offences) was wrong. I have written to the Court to apologise.
21. I asked him what he believed was the wrongful aspect of his behaviour. He did not seem to understand the concept of his victim being under the age at which she could legally give consent, but he did state that: 'I am ashamed of my behaviour. You're not supposed to be with someone under 16 years of age.'"
22. That appears beneath the heading, "Comments on Offences before the Court".
23. He said that he is sad all the time and derives no pleasure from his lifestyle, in or out of prison. He has lost 20 kilograms since entering prison, and as I look at him on the screen here today and compare the image I have before me and the image in the pictures in the agreed statement of facts, it is quite apparent that he has lost at least some weight. He appeared restless and agitated during the interview. There has been no mental health treatment during the detention. He is said to have been disorganised and tangential in his speech, and vague when asked for details of his history. He presented as suspicious, resentful and irritable, claiming to be very distressed and that it was "Hell in gaol, Hell in gaol. I am afraid of being attacked in here."
24. He was submitted for psychometric testing on the Kessler 10 scale. He scores in the severely distressed range, reporting more severe fatigue, anxiety and depression symptoms than are reported by most remand detainees. On the Level of Service Inventory - Revised, the risk factors were identified. His overall risk rating was low to moderate.
25. Contrary to the usual practice that the psychologist follows when preparing a pre-sentence report, he was unable to speak to persons who knew the offender to obtain corroborative information because the offender could not nominate anybody with whom the psychologist could speak. He said that he wants to obtain counselling from a Christian counsellor and seek paid work upon his release. The premises which he had occupied are soon to be resumed by the Department of Housing because of the length of time they have been vacant.
26. Upon what is said to be the accepted wisdom with regard to convicted sexual offenders, the opinion offered is that recidivism is relatively low and at the offender's age, his risk of re-offending is relatively unlikely. He was diagnosed as having post-traumatic stress disorder, chronic in nature, arising from the illness and death of his mother and the violent abusive behaviour of his father, and a major depressive disorder that developed as a complication of the PTSD.
27. Psychologists are generally not thought to have the necessary qualifications to offer diagnoses or to go beyond expressions of opinions in terms that there were indicia or presentations consistent with diagnoses, which are usually made by others. But I am prepared to accept in this case, that upon the facts presented to the psychologist, he came to the view at the top of p 5 of the report and which I have summarised.
28. There is a heading "Causation of Offences", in which the following appears: "Mr Schnorrenberg has coped with the mental disorders listed above by habitually avoiding study, paid work, friendships and intimate relationships, being suspicious and mistrustful of people and avoidant of challenging situations. He has lived a reclusive lifestyle, particularly since the death of his father in 2012 and his friend in 2018. His chronic depression and lack of social skills and capacity to form or maintain friendships has made it difficult for him to find or keep a girlfriend or sexual partners. It appears that his behaviour with the victim was opportunistic. He had not previously known or groomed her. He saw her in a public place, expressed sexual interest and invited her to his home. He became aware that she was aged 15 years, but this knowledge did not stop him from proceeding to initiate sexual acts with her."
29. The report then continues with treatment goals, treatment plans and sentencing considerations.
30. However, with regard to the causation of offences and what is there written, as the Crown, in my view, correctly identifies, within those three paragraphs there are internal inconsistencies.
31. The third of these paragraphs speaks of someone who is opportunistic, who approached the victim in a public place, expressed sexual interest and invited her to his home, even though he knew that she was 15 years of age, which did not stop him from initiating sexual acts with her, and yet it said that his conditions prompted him to habitually avoid study, paid work, friendships and intimate relationships, being suspicious and mistrustful of people and avoidant of challenging situations.
32. The facts which are not challenged include that where the victim was sitting and had been for about ten minutes, he approached and said, "Did anyone tell you you've got a nice arse?" He said, "I'm following you" and then misrepresented his age, and thereafter engaged with her and in due course took her to his home unit where, after removing his clothing and some of hers, he told her to suck his penis, put his penis in her mouth and asked her to call him Daddy. This was the first act of sexual intercourse before the penile/vaginal intercourse that followed that evening and then again the following morning.
33. The offender provided his letter which is marked exhibit 1 expressing sincere apologies to the victim and to the court. He knew she was under 16 and adds "by a few months". He writes that he knew it was wrong and he has had a lot of time to think while he has been incarcerated. He speaks of prison being not a nice place. He speaks of having been law-abiding for 20 years. He writes of his father's violence and alcoholism and the mistreatment administered to himself and his mother. He speaks of having withdrawn into isolation and depression and he speaks of the loss of his friend with whom he worked, Mr Dennaoui; the letter continues with the impact of the loss of his friend and the loss of his mother.
34. The only recognition of the exploitation upon which he engaged with this young girl appears in the beginning of the letter with his sincere apology to her and to the court.

Consideration

1. As I said, the offender did not give evidence, but was vocal when he perceived a measure of unfairness on behalf of the Crown and what appears to have been his suspicion that the Crown might have been endeavouring to cause him disadvantage in the way the material was presented to the Court. Clearly there was oversight. There was agreement as to facts, and the document in that form was signed by the offender today before it was transmitted back to the Court from where he is being held in custody.
2. It would have been much better had the offender, through his representatives, taken steps to make sure that the facts and other documents that he had to sign were in their proper form before the matter was to be heard, though I accept that in the present climate with COVID-19 and the limitations that are in place, brought by Corrective Services to mitigate the risk of infection from the disease, difficulties would have been presented, challenging the opportunity to have all of the documents in the proper form for tender on the day.
3. But clearly there was, I find, no misconduct by the Crown in putting the document before me that it did. The Crown, I accept, put before the Court, in the proper form, the agreed statement of facts when it sought to file the document, but for whatever reason, through perhaps some inefficiency in the registry, it did not find its way to the court file.
4. In any case, the excisions from the document, included at para 21, are fellatio where he placed his penis in the victim's mouth and asked her to call him Daddy and thereafter ejaculated into her mouth. The inclusion of the phrase "and held her by the hair" did not, in my view, express or by implication suggest that he was using any measure of force in that activity or that he was holding her head in position against her will. The excision of that passage from the document does not greatly affect the findings of fact I am about to make.
5. In para 26 the sentence, "During the sexual intercourse the offender told the victim to say 'I want you to come inside my pussy, Daddy,'" has been excised. That is of marginal impact on the conduct which founds the charge of sexual intercourse with this child and in para 29, when he is attributed with the phrase, "I want you to have my son, he will be a Lebanese kid" which has also been excised, once again is of marginal impact in the assessment of the facts on which sentence is to be determined.
6. There are disparities between the representations attributed to the offender and contained in his letter when I compare the agreed statement of facts, and accordingly, I am attributing limited weight to those representations where they differ in the ways I have identified. I am reminded of what has been said by the Court of Criminal Appeal in decision such as R v Quatami [2001] NSWCCA 353 and more recently discussed by Wilson J in Imbornone v R [2017] NSWCCA 144, beginning at para 57, to the effect that one must be circumspect when assessing self-serving assertions attributed to an offender who has chosen not to submit to an oath or affirmation and allow his representations to be tested by cross-examination.
7. On behalf of the offender, the submissions made are that the record of antecedents is of limited significance because there is no past sexual offending on his record and it has been some 20 years since he was before a Court. His only period of custody in the past was the eight‑month periodic detention. I am asked to find that it is unlikely that he will reoffend. I am confident that I could come to the view that, in light of the history demonstrated in the past 20 years, he has good prospects of rehabilitation and I find accordingly.
8. I am not satisfied that he has demonstrated remorse in the terms required by s 21A(3)(i) Crimes (Sentencing Procedure Act) 1999. I am not satisfied that he has acknowledged the harm caused to this victim by his exploitation of her. I note that he has pleaded guilty and he has the benefit of the discount for utility that provides.
9. It is said that the victim was a willing participant. I agree with the Crown's submissions in relation to this. It does not follow that one would come to that view when dealing with a 15‑year‑old child in the hands of a 39‑year‑old man, in circumstances exploiting her youth and the patent imbalance between their two positions. It is true that there is at least acquiescence on her part, reflected in the fact that she complied with his request of her to suck his penis to the point of ejaculation and that, in the course of the sexual intercourse that followed, on two occasions that she took the position on top of him, which must have involved at least acquiescence in their activities. But to simply state that by reason of those facts alone she was a willing participant and, therefore, the offender should be seen to be less culpable in his misconduct, puts the proposition too simply. She was in his home, she was 15 years of age, with the immaturity that the provision is meant to protect, making the conduct upon which she engaged criminal misconduct by the offender. I have also taken into account that he ejaculated in her mouth and into her vagina twice without adequate protection, with the attendant risks of pregnancy and disease.
10. I am aware of the statements of principle in Bugmy v R [2013] HCA 37, and the learning there provided. Although expressed within the context of indigenous people, those principles apply to offenders regardless of their ethnicity where they have had challenging circumstances in their formative years. On the material before me, although there is nothing to corroborate it and there is no sworn evidence describing what the offender experienced, I am prepared to proceed on the basis that those parts of his representation should be accepted.
11. The extent to which there was some causal relationship between that upbringing and what he engaged upon with this young girl is difficult to identify. That said, it is not necessary to establish a connection between the past and the conduct upon which the offender engaged before those principles are of application, which I find they are.
12. The Crown provided written submissions, which I have reviewed and which I accept as fairly stating the relevant principles and what is required of the Court. I agree with the proposition that, on these facts, the offender should be seen as a man of middle age preying on the young female victim, known to him to be under the age of 16 years. I agree with the proposition that there was a power imbalance and I have noted what was said in R v Nelson [2016] NSWCCA 9 at para 23 regarding the considerations that must be brought to account: "No doubt the use of threats or force in overcoming resistance would be an aggravating factor; however, mere lack of opposition is otherwise irrelevant. The activity was not overly described as 'consensual'; it might be better described as not being the subject of opposition. To treat that 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 Court 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."
13. I alluded to the fact that, after leaving the offender, the victim attended the office of the Department of Community Services and spoke to staff, and thereafter went to Corner Youth House at Bankstown and disclosed what had occurred, and that a staff member there contacted the police. I was told by Mr Ndou of the care arrangements for the victim at that point, which are not further described in the statement of facts, but it is apparent that those people had some involvement in her circumstances, which I find to have some significance to be brought to account within the context of this passage from the judgement in R v Nelson ibid.
14. I am satisfied that the line in s 5 Crimes (Sentencing Procedure) Act has been crossed and that a custodial sentence is required in this case. I have taken into account the additional offence on the Form 1 which I shall now certify.

The Sentence

1. The offender is convicted on each of the offences upon which sentence is to be imposed.
2. For the offence charged in sequence 7 and bringing to account the additional offence, allowing a 25% discount and rounding the sentence down to abandon days in the result of the application of the percentage to the starting point, I specify an indicative sentence of imprisonment of 2 years and 9 months.
3. For the offence charged in sequence 9, again allowing for a discount of 25%, I specify a sentence of 2 years and 3 months. I specify an aggregate sentence including the non-parole period of two years from 16 July 2019 to 15 July 2021 with a period on parole of 1 year and 6 months to expire on 15 July 2023. The exhibits can remain on file for as long as the parties require them, including exhibit B.

Endnotes

1. The transcript of this exchange appears in the draft iteration of the ex tempore judgement
2. The transcript of this exchange appears in the draft iteration of the ex tempore judgement DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2020