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Court of Criminal Appeal 17 June 2015

R v Skuthorpe

[2015] NSWCCA 140

Sexual offences
CRIMINAL LAW OFFENDER OFFENDER’S COMMITTAL PROCEEDINGS

Citation: R v Skuthorpe [2015] NSWCCA 140
Court: Court of Criminal Appeal
Date: 17 June 2015
Judge(s): Hoeben CJ at CL; Hidden J (leading judgment); Beech-Jones J

Background

The respondent pleaded guilty in the Newcastle District Court to aggravated sexual intercourse without consent. He received a sentence of 7½ years imprisonment with a 5-year non-parole period. The sentencing judge applied a combined discount of approximately 20% for both the guilty plea and the respondent's expressed willingness to give evidence against an alleged co-offender, referred to in the proceedings as Mr Nean.

During the sentence proceedings, the respondent gave evidence indicating he was prepared to testify against Mr Nean. However, when Mr Nean was subsequently arrested and faced committal proceedings, the respondent was called as a prosecution witness and refused to give evidence. He claimed he did not recall the incident and wished to remain silent. Mr Nean was discharged as a result.

The Director of Public Prosecutions brought a Crown appeal under s 5DA of the Criminal Appeal Act 1912, arguing the respondent had failed to honour an undertaking to assist the authorities and that the sentencing discount given in anticipation of that assistance should be removed.

Legal Issues

  • Whether the respondent's evidence in the sentence proceedings amounted to an "undertaking to assist law enforcement authorities" within the meaning of s 5DA of the Criminal Appeal Act 1912, particularly in the absence of a written undertaking or police statement.
  • Whether the sentencing judge's failure to separately specify the assistance component of the combined discount, as required by s 23(4) of the Crimes (Sentencing Procedure) Act 1999, affected the court's ability to intervene.
  • Whether, even if the prerequisites for a successful appeal under s 5DA were established, the court should exercise its discretion to dismiss the appeal on discretionary grounds.

Decision

Issue 1: Whether an undertaking existed under s 5DA

The court found that the respondent's evidence in the sentence proceedings, in which he voluntarily offered to give evidence against Mr Nean, constituted an undertaking within the meaning of s 5DA(1) (at [32], [35]). The court distinguished this case from R v Stavropoulos [2007] NSWCCA 333. In Stavropoulos, the sentencing judge had spoken only in terms of a willingness or preparedness to give evidence and there was no evidence given by the offender in the sentence proceedings. Here, the respondent made what appeared to be an unsolicited offer to testify and made clear enough what his evidence would be (at [32]). The court also accepted that the entire discount was directed to future assistance, given that the respondent's identification of Mr Nean during the police interview had no value unless he was prepared to give evidence against him (at [33]).

Issue 2: Effect of non-compliance with s 23(4)

The sentencing judge's combined discount of approximately 20% for both the plea and assistance did not comply with s 23(4) of the Crimes (Sentencing Procedure) Act 1999, which requires the assistance component to be separately identified (at [15]). That non-compliance did not invalidate the sentence under s 23(6), but it required the Court of Criminal Appeal to make its own assessment of the appropriate discount (at [34]). The court assessed the assistance component at approximately 10% (at [35]).

Issue 3: Whether to exercise discretion to dismiss the appeal

Despite finding that the respondent had failed to honour a valid undertaking, the court declined to intervene and dismissed the appeal on discretionary grounds (at [36]-[39]). Two matters combined to support that outcome. First, although a 10% discount reduction would add roughly 10 months to the head sentence, the amount was relatively modest (at [37]). Second, the delay in bringing the appeal was significant: the respondent failed to give evidence in April 2014, but the Crown did not lodge the appeal until January 2015, nearly nine months later, with no explanation offered beyond it being "symptomatic of a regional office" (at [38]). The court added a third consideration: the failure of both the Crown prosecutor and defence counsel in the District Court to draw the sentencing judge's attention to the requirements of s 23(4) (at [39]).

Orders Made

  • Appeal dismissed.

Key Takeaways

  • An oral offer of assistance made by an offender in the course of giving evidence in sentence proceedings can constitute an "undertaking to assist law enforcement authorities" for the purposes of s 5DA of the Criminal Appeal Act 1912, even without a written undertaking or a police statement (at [32], [35]).

  • Where a sentencing judge provides only a combined discount for a guilty plea and assistance without separately specifying the assistance component, this does not invalidate the sentence under s 23(6) of the Crimes (Sentencing Procedure) Act 1999. However, the Court of Criminal Appeal must then undertake its own assessment of the assistance discount, a task the statutory requirement in s 23(4) was designed to avoid (at [34], [39]).

  • Even where the prerequisites for a successful Crown appeal under s 5DA are established, the Court of Criminal Appeal retains a discretion to refuse to intervene. In this case, the combination of a relatively modest discount and a nine-month unexplained delay in lodging the appeal was sufficient to defeat the Crown's application (at [36]-[39]).

  • Identifying a co-offender by name to police will not, of itself, constitute past assistance to authorities where that identification has no practical value unless accompanied by a willingness to give evidence against that person (at [33]).

  • The Court of Criminal Appeal emphasised that compliance with s 23(4) is a responsibility shared by the sentencing judge and the legal representatives of both parties. Failing to address the subsection leaves the court without a clear record of the assistance component and creates the very difficulties that arose in this appeal (at [39]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912
- Crimes (Sentencing Procedure) Act 1999

Cases
- R v Carriage [2009] NSWCCA 147
- R v Douar [2007] NSWCCA 123
- R v GD [2013] NSWCCA 212
- R v KS [2005] NSWCCA 87
- R v O’Brien (CCA, unreported, 10 June 1993)
- R v Stavropoulos [2007] NSWCCA 333