AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
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 of NSW
Date: 17 June 2015
Judges: Hoeben CJ at CL, Hidden J, Beech-Jones J

Background

The respondent pleaded guilty in the Newcastle District Court to aggravated sexual intercourse without consent. The offence involved a second man, later identified as a relative of the respondent, who was alleged to have also sexually assaulted the complainant in a Newcastle park.

During his sentence proceedings, the respondent gave evidence in which he described what his co-participant had done and stated he was willing to give evidence against that person if required. The sentencing judge applied a combined discount of approximately 20 percent for both the guilty plea and the respondent's willingness to assist authorities, ultimately imposing a sentence of 7.5 years imprisonment with a non-parole period of 5 years. No written undertaking was signed, and no statement to police was made.

When the co-participant was later arrested and faced committal proceedings, the respondent was called as a prosecution witness. He refused to give evidence, claimed not to recall the incident, and disavowed his earlier statements. The Director of Public Prosecutions then brought a Crown appeal under s 5DA of the Criminal Appeal Act 1912, seeking to have the sentence increased on the basis that the respondent had failed to fulfil an undertaking to assist the authorities.

  • Whether the respondent's in-court statement that he was willing to give evidence against the co-participant constituted an "undertaking to assist law enforcement authorities" under s 5DA of the Criminal Appeal Act 1912
  • Whether the sentencing judge had complied with s 23(4) of the Crimes (Sentencing Procedure) Act 1999, which requires a court to specify the extent of any sentence reduction attributable to an undertaking to assist authorities
  • Whether the Court of Criminal Appeal should exercise its discretion to dismiss the appeal, despite the jurisdictional prerequisites being satisfied, having regard to the relatively small discount and the significant delay in bringing the appeal

Decision

Hidden J (with whom Hoeben CJ at CL and Beech-Jones J agreed) found that the respondent's in-court statements did constitute an undertaking to assist authorities within the meaning of s 5DA. The evidence given during sentencing amounted to more than a general expression of willingness: the respondent described in specific detail what the co-participant had done and confirmed he was prepared to repeat that account to a jury or magistrate. That commitment satisfied the threshold for an undertaking, and the respondent had plainly failed to fulfil it at the committal.

The sentencing judge had also failed to comply with s 23(4) of the Crimes (Sentencing Procedure) Act 1999, which requires the court to indicate on the record how much of any discount is attributable to future assistance. The combined 20 percent discount had not been separated into its component parts. Hidden J noted this left considerable uncertainty about how much weight the assistance component actually carried, with estimates ranging from 5 to 10 percent of the total sentence.

Turning to the question of discretion, Hidden J held that even where the jurisdictional requirements of s 5DA are met, the court retains a discretion to decline to intervene. Two factors weighed against allowing the appeal: the relatively modest size of the assistance discount and, critically, the unexplained delay of nearly nine months between the respondent's failure to give evidence at the committal in April 2014 and the lodging of the appeal in January 2015. The Crown prosecutor candidly acknowledged the delay was attributable to the regional office, but offered no substantive explanation. Hidden J held that the combination of these two discretionary matters warranted dismissal.

His Honour added a further consideration: both the Crown prosecutor and defence counsel in the District Court had failed to draw the sentencing judge's attention to the requirements of s 23(4). The purpose of that provision is to leave the offender in no doubt about the extent of any sentence reduction for assistance and to place the appellate court in an informed position should a s 5DA appeal arise. Both parties, not merely the sentencing judge, bear responsibility for ensuring compliance.

Orders Made

• The appeal is dismissed.

Key Takeaways

  • An offender's in-court evidence during sentencing, describing a co-participant's conduct in specific terms and affirming willingness to repeat that account to a jury, can constitute an "undertaking to assist law enforcement authorities" under s 5DA of the Criminal Appeal Act 1912, even in the absence of a signed written undertaking or a statement to police.

  • Under s 23(4) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must separately identify the portion of any sentence reduction attributable to an undertaking to assist authorities. Combining that component with a guilty plea discount, without specifying each element, constitutes non-compliance with the subsection.

  • Responsibility for ensuring compliance with s 23(4) falls not only on the sentencing judge but also on the legal representatives of both parties. Failure by Crown and defence counsel to raise the issue contributed to the procedural difficulties on appeal.

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that even where the preconditions for a s 5DA appeal are established, the court retains a discretion to decline to intervene. That discretion may be exercised where the relevant discount is modest and the appeal was brought after an unexplained and substantial delay.

  • A nine-month delay between an offender's failure to fulfil an assistance undertaking and the lodging of a Crown appeal, where the only explanation offered was administrative failure in a regional office, weighed significantly against appellate intervention in the exercise of that discretion.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5DA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(4)

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