Director of Public Prosecutions v Skerry

[2020] VCC 1189

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00132

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYLER SKERRY

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2020
DATE OF SENTENCE:	5 August 2020
CASE MAY BE CITED AS:	DPP v Skerry
MEDIUM NEUTRAL CITATION:	[2020] VCC 1189

REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Rape; Theft; Offender armed with a knife raped victim in park late at night and stole her phone; victim fought back and escaped; digital rape; early plea of guilty; standard sentencing offence; serious example of rape; high moral culpability; offender relatively youthful; borderline intelligence; limited remorse; prior convictions.
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited: Director of Public Prosecutions v Tewksbury [2018] VSCA 38; Muldrock v The Queen (2011) 244 CLR 120; Brown v the Queen [2019] VSCA 216; Director of Public Prosecutions v Wright [2020] VCC 837; Todd v the Queen [2019] VSCA 46; Director of Public Prosecutions v Hermann [2019] VSC 694.
Sentence: Sentence of 10 years, one month imprisonment with a non parole period of six years.  Sex offence registration for eight years.  But for the plea of guilty, sentence of 14 years imprisonment with non parole period of nine years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Sonnet	OPP
For the Accused	Mr C. Terry	Matthew White & Associates

HER HONOUR:

Introduction

1Tyler Skerry, at about 10 pm on the night of 19 October 2019 you saw a woman walking a dog near Mayer Park in Thornbury.  You followed her into the park and approached her.  You pretended that you had lost your wallet and asked if she could use the light from her mobile phone to help you search for it.   

2You led the woman, who I shall call Grace Burn[1], further into the park whilst she was shining her phone torch onto the grass looking for your wallet.  After a while she looked up to see you pointing a knife at her.   You grabbed her by the arm and pulled her onto the ground on her back, telling her to be quiet.  You held the knife at her face whilst you forced your other hand into her underwear, pushing your fingers aggressively into her vagina. 

[1] Throughout these sentencing remarks I will use a pseudonym in place of the name of your victim in order to protect her identity as a victim of sexual assault. 

3Ms Burn struggled against you.  She grabbed your hand with the knife and said, ‘It’s going to fucking hurt when I stab you’.  You rolled her over onto her stomach, got on top of her and started to pull down your pants.  At this point Ms Burn managed to extract the knife from your hand.  She reached backwards and stabbed you in the back upper thigh, allowing her to get out from under you.  She grabbed the dog and ran to the nearest intersection where she hailed a car.  She was still carrying the knife, which she described as a small kitchen knife with an approximately 4 inch blade, but had left her mobile phone, bank card and drivers licence behind. 

4You also fled the scene, but not before picking up Ms Burn’s mobile phone.  Your sale of this phone the next day quickly led to your identification.  Knowing that the police were looking for you, on 21 October 2019, you presented yourself to the Preston Police Station with your mother.  You were arrested, medically assessed and treated.  Later that day you were interviewed in the presence of an independent third person.  You made admissions and were charged and remanded into custody where you have been ever since. 

5After your detention forensic testing effectively established that your DNA was on samples taken from the scene, Ms Burn’s hands and the knife.  

6You indicated your intention to plead guilty prior to the committal mention which took place on 31 January 2020 and in fact pleaded guilty to one charge of digital rape and one charge of theft of the mobile phone before me on
15 July 2020.  

7After a plea on your behalf, it now falls to me to sentence you for your conduct.  In arriving at an appropriate sentence, I am required by law to have regard to a number of factors which are sometimes overlapping and sometimes contradictory in nature.[2]   Some tend towards leniency and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.

[2] Section 5(2) of the Sentencing Act 1991.

Objective Gravity of your offending and moral culpability

8On any view rape is a serious offence.  It is a deeply personal crime which, at the very least, involves the violation of a person’s body and right to sexual and physical autonomy.  The maximum penalty of 25 years' imprisonment unambiguously reflects the seriousness with which Parliament regards the crime, as does the fact the offence is now subject to various specific sentencing provisions which operate to constrain the sentencing discretion and promote harsher penalties.[3]. 

[3] Rape is a Category 1 offence as defined in section 3(1)(d) of the Sentencing Act 1991, which pursuant to 5(2G) of that Act must be punished by a custodial order not in combination with a community corrections order.   Further, it is a serious sexual offence and has a standard sentence of 10 years imprisonment. 

9Whilst conceding the presence of aggravating features, your counsel,
Mr Terry, submitted that ‘broadly speaking’ your offending fell within the mid-range of seriousness in that it was opportunistic, of short duration, involved no actual physical violence or physical injuries and no risk of sexually transmitted diseases or pregnancy. 

10In my view your offending is a serious example of the crime of rape and your moral culpability is high.   Granted there is no evidence of significant premeditation or planning, but you did follow Ms Burn into the park and present her with a ruse as to why you wanted her help.  Granted also that the incident was of relatively short duration and you are only to be sentenced for what occurred, not what might have occurred, the fact is you did not voluntarily desist from your attack.  Indeed, the incident only came to an end as a result of Ms Burn’s courage and tenacity. 

11The submission that there was no actual physical violence is true insofar as you did not subject Ms Burn to acts of gratuitous violence such as punching or kicking, however it should never be forgotten that rape is, of itself, an act of violence.  Further, you did pull Ms Burn to the ground and overpower her during her ordeal.    

12Finally, the submission that Ms Burn was not exposed to the risk of sexually transmitted disease or pregnancy is also true, but the Courts have made it clear that offence gravity is to be determined by the whole of the circumstances rather than the type of penetration.[4]  You attacked an innocent woman in a public park at night whilst armed with a knife.  You told her to be quiet and held a knife to her face whilst forcibly penetrating her vagina with your fingers.  Her ordeal only came to an end because she escaped.  Your victim was terrified and highly distressed.  She remains deeply affected to this day.   In these circumstances the fact there was no penile penetration cannot be considered mitigatory. 

[4] For example, Director of Public Prosecutions v Tewksbury [2018] VSCA 38 at [67].

13Mr Terry frankly acknowledged that he was unable to answer Ms Burn’s expressed desire to know why you felt you were entitled to rape her.  You told the police in your interview that you knew what you did was wrong.  You said you always carried a knife or scissors, that you followed the victim into the park and made up any excuse to rape and take her stuff to sell for drugs.  You said you had been drinking alcohol and were intoxicated.  You told Mr Terry that you believe you had consumed ICE as well as alcohol.  It may be that your intoxication provides some explanation for your offending, but it is in no way mitigatory. 

14The prosecutor, Mr Sonnet, submitted that the theft of the mobile phone was opportunistic and at the lower end of seriousness for an offence punishable by a maximum penalty of 10 years.  In fact, according to your record of interview your desire to steal from Ms Burn may have formed part of your initial motivation in approaching her.  On any view, your taking of her phone and its sale the next day reveals a certain callousness with regard to the rape. 

15The courts recognise that youth and immaturity may reduce an offender’s moral culpability, but there is little to support that finding in your case.  You were 22 years old and not a mere child.  As such you were at the outer limits of the application of that principle.  Further, both the circumstances of the crime and your admissions to police make it clear that you were well aware of the wrongfulness of your conduct.  It was also not your first foray into crime.  You had been before the courts on a number of occasions prior to this night.  Indeed, your moral culpability for this offending is increased by the fact that at the time you were on an adjourned undertaking to be of good behaviour for 12 months. 

16A 2014 neuropsychological report assessed you at age 17 as being of borderline intelligence with a full-scale IQ of 74 and general cognitive functioning in the bottom 4% of the population for your age group.  I was not provided with any contemporaneous material in relation to your mental functioning, but Mr Terry informed me that a recent assessment had occurred and he was not relying on any of the limbs of Verdins, that being a case which concerns the effects of mental impairment on sentencing.  He submitted there was no evidence of any connection between your mental functioning and the offending and that since the objective facts were consistent with your intellectual capacity, its only relevance was as to your prospects of rehabilitation.

17I am alive to the High Court case of Muldrock[5]. However, in that case the offender had a significantly lower IQ than yours and there was unchallenged evidence of a causal relationship between his intellectual disability and offending.  Here there is no such evidence and further, Mr Terry specifically disavowed any reliance on your impaired intellectual capacity to reduce your moral culpability or otherwise explain your offending.  

[5] Muldrock v The Queen (2011) 244 CLR 120.

18In short, there is nothing about the crime or your personal circumstances to significantly lessen your moral culpability. 

Current Sentencing Practices

19One, and only one, of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices.  Since 1 February 2018, rape has been a standard sentence offence under the Sentencing Act 1991 with the standard sentence for an offence of mid-range objective seriousness set at 10 years with a presumed minimum non-parole period of 60%.[6] 

[6] Sections 5A and 11A of the Sentencing Act 1991 (Vic).

20The methodology for sentencing standard sentence offences is not that I engage in a two-step process of first assessing the objective seriousness of your offence compared to some hypothetical mid-range offence and then work up or down depending on your personal circumstances or other factors.   Rather, I must take into account the standard sentence and non-parole period in the same way as I take into account the maximum penalty, and indeed all other relevant sentencing factors, to arrive at an appropriate sentence by a process known as instinctive synthesis.[7]    

[7] Brown v the Queen [2019] VSCA 216.

21The reason for looking at current sentencing practices is to promote consistency of approach in sentencing, particularly the application of relevant sentencing principles.  Whilst no two cases are ever truly the same, and other sentences are not precedents to be applied or distinguished, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.  In the case of offences subject to the standard sentencing regime, such as yours, the consideration of other sentences must be confined to other sentences imposed under that regime, that is, sentences imposed for offences committed after 1 February 2018.[8]

[8] Sentencing Act 1991 (Vic) s 5B(2)(b).

22The prosecutor provided details of all such sentences for rape.   Mr Terry referred me to five of those cases which he submitted were the most relevant.   Both counsel agreed that the most similar case was DPP v Wright.[9]  That case involved the digital rape of a stranger where the accused, who had relevant priors, was sentenced to eight years imprisonment with a non-parole period of six years.  That rape occurred in broad daylight in a populated shopping precinct.  Indeed, three witnesses came to the victim’s aid immediately after the offence.  Your rape of Ms Burn was much more sinister and would have been much more frightening, occurring, as it did, in the dark, in a park, with no-one around to help.  Further, you were armed with a knife.  The Accused in DPP v Wright had borderline intelligence like you, as well as serious psychiatric illnesses.  Although he did not find a causal link between the accused’s mental impairment and the offending, the sentencing Judge nevertheless decided to moderate general and specific deterrence in fixing the sentence.   

[9] Director of Public Prosecutions v Wright [2020] VCC 837.

23There is no need for me recite the details of the other cases to which I was referred.  Suffice to say, I have had regard to them all and whilst informative, they reveal a great divergence in circumstances of offending and offender.  Ultimately my duty is to impose a just and appropriate sentence on you in the circumstances of this case. 

Impact of your offending

24Ms Burn, who was 32 years old at the time of the offence, provided a detailed and thoughtful Victim Impact Statement.  Her Victim Impact Statement was read out in court and although my attempt to summarise it risks not doing it justice, her sentiments and observations are too important not to be repeated.  Ms Burn observed that as she notices new ways in which she has been affected all the time it is far too soon for her to understand the full impacts of your crime.   She said she was under no illusion before this night that the world was safe, but nevertheless feels devastated that she can never return to the feeling of relative safety that she had before.  Before the rape she considered herself capable, independent and brave, but now doubts herself and her past judgment.  She is angry that you have made her feel this way. 

25Ms Burn has intrusive memories and is constantly reminded of the rape.    For the first time in her life she has concerns for her mental health.  

26Ms Burn describes feeling guilty that she survived when others have not.  On the night she felt guilty and ashamed about the fuss that was made of her.  She is afraid of you and worries about you being released.  She does not understand why you thought it was ‘okay’ to use a knife and rape a woman and hopes you get the necessary help so that you will no longer be a danger.  She is preoccupied with issues of violence against women and the need for societal change. 

27Obviously, your crime has had a profound and long lasting effect on Ms Burn.

Plea of Guilty, co-operation and remorse

28You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at a very early stage.  In so doing you have facilitated the course of justice and taken legal responsibility for your crimes.  You have also spared Ms Burn the experience of coming to court to give evidence.  Your plea of guilty is particularly important in the current environment where COVID-19 has placed the criminal justice system under considerable strain.  Further, the fact the case against you was strong does not detract from the utilitarian value of your plea. 

29Further, I take into account in your favour the fact you surrendered yourself to police voluntarily and made admissions during your interview.  It appears you were making a genuine effort to recall the events and, in any event, accepted Ms Burn’s account. 

30It is hard to make a proper assessment of the extent of your remorse, if any, given the lack of any satisfactory explanation for your offending.  You did describe Ms Burn as ‘innocent’ and a ‘poor lady’ in your interview but otherwise did not exhibit any particular concern for her.  On balance, given your early co-operation and preparedness to make admissions despite your hazy recollection I am prepared to accept that you have some remorse, albeit limited. 

Background and personal circumstances

31Your background and personal circumstances were set out in the Outline of Defence Submissions[10] tendered on your plea and elaborated upon in oral submissions.  Additional details were contained in various historical reports relating to a 2014 Children's’ Court appearance, including the aforementioned neuropsychological report.[11]

[10] Exhibit 1

[11] Exhibits 2 -6.

32Very briefly, you were born on 25 May 1997 and are now 23 years old.  You were born in Melbourne and grew up in Kensington.  Your father is of Maltese heritage.  The historical reports indicate that you are indigenous on your mother’s side, however it appears that your mother does not in fact identify as indigenous and nor do you.   You are the oldest of a sibship of three and have stepsiblings on both sides of your family.

33Your parents separated when you were young, and you and your two siblings stayed with your father.  You had little relationship with your mother until you were about 18.  Your father was a ‘strict disciplinarian’ but was never abusive or violent towards you.  You describe your current relationship with both parents as ‘good’.

34You have a limited education, having left school after being asked to do so, mid-way through Year 9.  You had learning difficulties throughout your education including delayed literacy and numeracy.  You were assisted by a teacher’s aide in primary school.  After leaving school you did some vocational courses at TAFE including a welding and fabrication course and a ‘LEAP’ course which covered basic life and vocational skills. 

35You have worked in a variety of jobs including as a cook at Kentucky Fried Chicken, carpet laying, labouring for a flooring company and with your father who is a painter and decorator. 

36You started drinking alcohol when you were about 14.  You did not drink every day but binge drank on occasions.  You started using cannabis and solvents at about 15.  You soon stopped the solvents but continued using cannabis into your 20s.  When you were about 17 you commenced using ICE.   You had counselling for your drug use through Youth Support and Advocacy Service, ‘YSAS’, in your late teens.   You have managed to achieve months of abstinence before relapsing. In the lead up to this matter you were smoking ICE about twice per week.    

37You have had three previous relationships of less than six months. Currently you are single.

Your character and risk of reoffending

38You have been sentenced on four prior occasions for a myriad of offences including dishonesty, drugs, graffiti, assaults and weapons charges.  Your first appearance was in the Children's’ Court in 2014 and thereafter you appeared in the Magistrates Court.  You have received non conviction dispositions on all except the last appearance in May 2019, when you were convicted and fined.  On that occasion you were sentenced for, amongst other offences, possessing a controlled weapon.  That was the third time you had been before the courts for possessing a weapon.  The instant offending occurred only five months after that court appearance and six months after the appearance before that, when you were placed on the adjourned undertaking.  When interviewed for this matter you told the police that you always carry a knife or scissors.  Clearly, your prior court appearances have done nothing to deter you. 

39It is fair to say that your prior offending, although concerning, is minor compared to this matter.  Significantly, you have no prior convictions or findings of guilt for sexual offences and nothing to suggest you were likely to commit a rape. 

40This offending represents a marked escalation in your criminality.  The absence of any satisfactory explanation as to why this escalation has occurred, or indeed any satisfactory explanation for the offending itself, is of real concern, especially given your borderline intelligence.  On the other hand, you are still relatively young and with appropriate treatment you may not offend again.  Overall, I consider your future prospects to be moderate. 

The effect of COVID 19

41Whilst the chance of you being infected with coronavirus in prison is speculative, I accept that the worry of contracting the virus is an additional burden for all prisoners.  Further, I take into account that any term of imprisonment during the pandemic will be harder due to the suspension of visits to prisons, the curtailment of various programs and activities and the imposition of lockdowns. 

Purposes of Sentencing

42In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed.  These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. 

43I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes.  Further, when there is more than one charge, as here, the sentence must not offend the principle of totality.  What that means is that you must not be punished any more than is proportionate and appropriate to your overall offending.  I have sought to ensure that does not happen that by ordering only modest cumulation of the sentences on your two charges.

44Generally, a custodial sentence must only be imposed as a last resort, however rape is a special category of offence which not only requires the imposition of a custodial sentence[12], but also has a standard sentence of 10 years.  Even without those provisions your offending clearly warrants a substantial term of imprisonment. 

[12] not being one in combination with a community corrections order

45Your actions on this night strike fear in the heart of women everywhere.  In a recent judgement involving a rape and murder of a woman in a park our Court of Appeal said:

46'The applicant’s conduct was unspeakably loathsome and cruel and must be condemned in the strongest terms.  A young woman should be able to walk home alone after a night out without any fear of being harmed, let alone subjected to a vile sexual attack and killed.  She should not have to be looking over her shoulder to see if anyone is following her.  Her heart should not have to skip a beat when she hears approaching steps from behind.  Tragically, this case shows that women still cannot have confidence that they can walk in public places at night without potentially attracting the attention of predators'.[13]

[13] Todd v the Queen [2019] VSCA 46 at [59] per Ferguson CJ, Priest and Beach JJA.

47In another, unfortunately, similar recent case a Supreme Court Judge said:

48'The murder and rape were completely random offences, committed against a total stranger, late at night.  Ms Maasarwe was doing nothing more than walking along a public street, on her way home from a night out, as she had every right to do.  Whenever a woman is brutally attacked by a stranger in public, understandably it causes other women to feel less safe going about their ordinary daily lives'.[14]

[14] Director of Public Prosecutions v Hermann [2019] VSC 694 at [13] and [14] per Hollingsworth J.

49Those cases were obviously much more serious than yours, nevertheless the comments in each are apposite.   Women should be able to walk at night without fear of being randomly attacked by a stranger.  In her victim impact statement Ms Burn said: 'when I left to walk the dog that night, I specifically chose a puffy, figure hiding jacket, and placed a long beanie over my head to cover my hair, with the conscious thought "this will make me less conspicuous”'.  The sentence I impose must serve to denounce your conduct and act as a deterrent to men who are tempted to act as you did on this night.  

50Not only must my sentence deter others, it is necessary that it contain an element of specific deterrence as well.  That is, it should dissuade you from doing anything similar in the future and thereby afford the community some level of protection.

51For the reasons already discussed I am not satisfied that your borderline intelligence justifies any significant moderation of general or specific deterrence.  In any event to the extent that some moderation is warranted, the need for community protection is increased.  

52Of course, the need for my sentence to deter you and others and denounce your conduct is not the end of the matter.  I must and do take into account the various mitigating factors I have already outlined in detail.

53Your potential rehabilitation is an important consideration, especially given your relative youth.  In the case of serious crimes such as this, rehabilitation often takes a back seat to other sentencing considerations, however it remains the case that community protection is best achieved by an offender’s rehabilitation.  In my view a non-parole period which does not exceed the presumed minimum of 60% of the head sentence will facilitate your rehabilitation without undermining the gravity of your crime.  In the event, the non-parole period that I set will be just shy of the 60% presumed minimum because I am satisfied that it is in the interests of justice to do so.

54I have weighed all the competing considerations as best I can to arrive at an appropriate head sentence.  I am acutely aware of the fact the prescribed standard sentence is only one of the factors to which I must have regard, however in my view it is the appropriate head sentence for rape in this case.      

Sentence

55Mr Skerry, if you could stand please?

56On Charge 1, I convict and sentence you to 10 years imprisonment. 

57On Charge 2, I convict and sentence you to three months imprisonment.  I direct that one month of that sentence be cumulative on Charge 1.

58That makes a total effective sentence of 10 years and one month. 

59I set a non-parole period of six years.

Presentence Detention

60I declare that you have served a total of 289 days pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively.

Section 6AAA 

61If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of 14 years with a non-parole period of nine years. 

Ancillary orders

62The prosecution seek a disposal order of the knife and your clothing and I will make that order.  

Sex Offender Registration

63Mr Skerry, there is one other matter and that is to do with the Sex Offender Registration.

64You have been found guilty of one Class 3 offence within the meaning of the Sex Offenders Registration Act 2004 (Vic).  The prosecution have sought an order that you comply with the reporting obligations under that Act.  I can only make such an order if I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community.  Given the circumstances of your offending on this occasion, which I have outlined in detail, I am so satisfied and accordingly will make that order.  

65You will be required to comply with the reporting obligations under that Act for the period of eight years. 

66The Sex Offenders Registration Act provides that you must be given a notice setting out your reporting obligations under the Act and what will happen if you do not comply with those obligations.  

67The Court will make sure that that notice is sent to you in custody. 

68Even though you will have a copy of this document, I will just give you an idea of what is involved. 

69You will be required to report to Victoria Police within seven days of being released from custody.  Then you will have to comply with an initial report.  You will be interviewed and details taken.  You will then be required to go to your nominated police station each year to make an annual report.

70You will have to give details of your address, occupation, vehicles, internet provider, social media usernames, passwords and the like and notify police of any changes in those details.  You have to notify of intended travel interstate and seek permission to travel overseas.  It is all set out in that document. 

71If you do not comply with your reporting obligations that is a criminal offence and if you do not comply you will be charged and will have to appear in court again.

72Mr Skerry, did you understand the sentence that I have imposed?  Could you just sit down again for the moment?  Did you understand the sentence I have imposed?  It is ten years, one month with a non-parole period of six years.

73OFFENDER:  Yes, I understand.

74HER HONOUR:  Thank you.  Are there any other matters that I need to attend to or any matters that counsel wish to raise with me?

75MR SONNET:  No, Your Honour.

76MR TERRY:  No, Your Honour.

77HER HONOUR:  Thank you very much.  We will adjourn the court.

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