R v Katon

[2023] NSWDC 640

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Katon [2023] NSWDC 640
Hearing dates:	1/8/23-15/8/23, 31/10/23, 7/11/23
Date of orders:	7/11/23
Decision date:	07 November 2023
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to a term of imprisonment of 4 years with a NPP of 2 years 8 months (15/8/23-14/4/26). I find special circumstances.
Catchwords:	Crime – Sentence – Sexual intercourse without consent
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Fisher v R [2021] NSWCCA 91
Category:	Sentence
Parties:	NSW DPP – Crown Scott Ronald Katon - Offender
Representation:	Mr S Morrison for Crown Ms G Jewison for Offender
File Number(s):	21/338087
Publication restriction:	Statutory non-publication order in relation to the identity of the victim and any children

remarks on sentence

1. I note that there is a non-publication statutory provision which prohibits anybody from publishing the name or identify of the victim to whom I will be referring in these remarks.

2. The offender, Mr Scott Katon, stood trial before a jury here in Newcastle from 1 August 2023, on a charge of sexual intercourse without consent. On 15 August 2023, the jury found him guilty of that offence, for which he is now to be sentenced.

3. The maximum penalty for that offence is 14 years imprisonment, and a standard non-parole period of seven years is specified by parliament. The maximum penalty and standard non-parole period are, of course, important guide posts in the sentencing exercise to which I have had regard.

FACTS

4. It is for me to determine the facts which must be consistent with the jury's verdict. Any aggravating matters must be proved beyond reasonable doubt while mitigating matters need only be proved on the balance of probabilities. I find the following facts.

5. The offence took place on the morning of 27 November 2021 at a house in Buchanan. The victim, KR, was at that time aged 18. On the afternoon before the offence, KR had attended a gathering for her Nana's birthday and after this, she was picked up by her friend, JS.

6. JS drove KR to his home in Buchanan where he lived with his parents.

7. The plan for that night was that KR and JS were intending to go, with some other young people, to the Criterion Hotel. This included JS's girlfriend, PB, and their other male friends, RG and AB. The offender and his friend, Simon Saxelby, also had plans for that night which involved the offender attending Simon's house where they intended to drink together and play cards. The offender was already at the Saxelby house when KR was driven there by JS.

8. At that time, the offender and Simon Saxelby were seated in an outdoor entertainment area which included a bar. The offender greeted KR with a "Hi, how are you?" and she responded in similar terms. KR had met the offender, who she knew as Kato, only very briefly on one prior occasion.

9. Before leaving for the Criterion Hotel, KR was present as JS said goodbye to his father, Simon, by giving him a hug and kiss. At that time, the offender said words to the effect of "Well, are you going to give me one?" But when JS went to give a hug to the offender, the offender said, "Oh no, I wasn't talking about you. I was talking about her," and pointed towards KR. KR said she was a bit "weirded out" by this comment but didn't take much notice of it and laughed it off.

10. After this the group of young people comprising KR, PB, JS, RG, and AB, attended the Criterion Hotel at Weston, where they stayed until about 1.30am. While at the pub, they listened to music and had some drinks. When they returned to the Saxelby residence, where they intended to spend the night, they found the offender and Simon Saxelby still drinking in the entertainment area. Upon their return, KR and the other young people greeted the offender and Simon, who was seated at the bar. After exchanging some small talk about the evening, PB, JS, RG, and AB went into the main house to make some food and left KR in the entertainment area where she was talking to the offender and Simon.

11. KR was sitting on a bar stool on the same side as the offender, whilst Simon was on the opposite side of the bar. Simon poured KR a rum and Coke, which she drank. Around this time, her other young friends returned briefly to the bar area, where they stayed for a short time before going to a granny flat area on the property where the young people intended to stay for the night.

12. At some stage KR changed into some clothes which belonged to JS and which had been lent to her by JS's girlfriend, PB. KR returned to the bar area where she continued with the offender and Simon to talk, and where she also consumed some of another drink of alcohol which was poured for her by the offender. She noticed that the alcohol was having an effect on her, and that she was, to some extent, intoxicated. At some stage the offender's knee came into contact with KR’s knee, which caused her to move slightly away from him. She, however, remained at the bar area, talking with Simon and the offender.

13. At some later stage that morning, while Simon Saxelby was absent from the bar area, the offender touched the victim on the leg. Shortly after the victim told Simon about this saying, "Can you keep your mate away from me? He just touched me", and when Simon asked if she was all right, she said, "Yes. Just keep him away". Simon subsequently spoke to the offender about this saying, "What did you do?", to which he replied, "I just touched her on the leg". At some point in the early hours of the morning, KR left the bar area and went to the granny flat where she intended to sleep. However, the offender and Simon remained at the bar drinking alcohol.

14. Next thing KR recalled was waking up on the mattress where she had been sleeping. This was around about 9.30am. She could feel something inside her vagina and felt pain in her vagina. She looked to her side and saw the offender lying on the mattress next to her. He was under the blanket. She tried to get up but the offender grabbed her thigh and told her not to go and said something like, "Don't get me in trouble," and, "Don't leave."

15. At the time, the victim felt dizzy and sick, but after a short time she got up and went to the bathroom where she fell to the floor and started crying hysterically. This was observed by a number of people. The victim made immediate complaint to those around her saying, "He touched me," and when the offender told her "Shh, be quiet," she yelled at him, "Don't tell me to shh," after which the offender said, "I didn't touch you in that way," and "Oh, I've fucked up."

16. After this the offender's friend, Simon Saxelby, in the presence of JS, asked the offender "Did you touch her?" and "Did you go inside her?" to which the offender said, "Yes," but added that he had "only used one finger," and "didn't hurt her". PB drove the victim home, where the victim's mother could see that she was very distressed. While the victim was at her house Simon Saxelby called PB and the offender could be heard in the background yelling, "Stop her from calling the police," and "I didn't mean to touch her".

17. Police were contacted and came to the victim's home and she was taken by ambulance to hospital. While being examined the victim said she had a sore vagina and abdomen. A low vaginal swab, taken from the victim, returned a positive result for the offender's DNA.

18. The offender was interviewed by police after he presented himself to Cessnock Police Station on 28 November 2021. He accepted that he had gone into the granny flat at some stage, but declined, at that stage, to answer questions about whether he had touched the victim inappropriately. Those are the facts upon which I proceed to sentence.

OBJECTIVE SERIOUSNESS

19. Turning then to the objective seriousness of the offending. The objective seriousness of an offence of sexual intercourse without consent is marked firstly, by the significant maximum penalty of 14 years imprisonment, and by the specification of a standard non-parole period of seven years. Each of those, as I have said, are important guideposts in this sentencing exercise.

20. The particular example of that offence before the Court today involved the penetration of the victim's vagina without her consent which commenced while she was asleep. The offender, as he was entitled to do at trial, challenged the victim's version and essentially said that any sexual contact between them was consensual. It was suggested to the victim that the only time that the offender's knee touched her knee was when she sat close to him. It was suggested that she was flirting with the offender and used her foot to rub against his groin, that she rubbed her fingernails against his leg, and that they had also held hands.

21. It was further suggested that at some point, the victim had pushed her bottom towards the offender and that she had placed one leg onto a bar stool and that the offender had moved her underwear aside and penetrated her vagina with his thumb while the victim moaned. The victim did not accept any of these suggestions. Nor did she accept the suggestion that the next morning, the offender had laid beside her and she had pushed her groin against his hip, before pulling aside her own underwear while the offender penetrated her vagina with his finger.

22. It is clear from the jury's verdict that it rejected these suggestions, as I do. The young victim was, in my view, a fairly impressive witness, who gave her evidence in a credible and understated way. It is not surprising that the jury accepted her account beyond reasonable doubt. It is not surprising either, that the jury rejected the offender's version, which involved the implausible suggestion that this 18 year old girl or young woman, had been sexually attracted to, and sexually provocative towards, the offender, a man old enough to be her father or perhaps grandfather. In my view the offender's version was simply an attempt to explain away some very compelling Crown evidence which included admissions to having "touched" and placed a finger inside the victim as well as the finding of his DNA in the victim's vagina.

23. In assessing the objective seriousness of an offence of sexual intercourse without consent, there is no particular hierarchy which determines the seriousness of the offence. Rather, each example of the offence must be assessed with regard to its particular circumstances. The circumstances here are that the offender placed a finger or fingers into the victim's vagina, which caused her to wake up, in pain, and immediately protest by trying to get up and where the offender restrained her for a short period by holding her leg and asking her to stay with him.

24. The offence involved an 18 year old girl who was very significantly younger than the offender, who was aged about 53 at the time. I am also satisfied that the offender's actions were completely unwanted and unexpected, and that the victim had not the slightest interest in him and had given no encouragement whatsoever to his committing this highly invasive and degrading act upon her.

25. While I accept that the offence was not planned, it was preceded by conduct of the offender in which he demonstrated a sexual interest in the victim by touching her the night before. As I have already said, this sexual interest was not reciprocated by the victim in any way at all.

26. The offence involved a degree of deliberation, and although somewhat opportunistic, it was a continuation and escalation of the offender's sexual interest in the victim. I am further satisfied that the offender had actual knowledge that his actions were not consented to by the victim; and that he committed the offence for his own sexual gratification.

27. While I am unable to determine the length of time over which the offender penetrated the victim's vagina with his finger or fingers, I am satisfied that it was not fleeting, and that it commenced while the victim was asleep, and therefore vulnerable, and continued briefly after she woke up. In Fisher v R [2021] NSWCCA 91, in relation to the circumstances of that case, Adamson J, commented at para 242 to the following effect:

"To initiate sexual intercourse with a stranger who is asleep is a particularly serious violation. The complainant, who was unconscious, having fallen asleep, fully clothed, in a bed with the permission of its owner, was particularly vulnerable. I accept the Crown's submission that the objective seriousness of count 1 is just below mid range. Although there were no threats of violence, there did not need to be because the complainant, being unconscious at the outset, was in no position to resist or defend herself."

28. It seems to me that that observation is germane to the matter before the Court.

29. There is, of course, a degree of overlap involved in the victim being asleep, and therefore vulnerable, and so I have taken care not to double count these aspects. The penetration of the victim's genitalia caused considerable pain in her vagina and abdomen as well as great distress. All of which she experienced immediately after the offence and which continued, at least until she was examined by the sexual assault nurse examiner.

30. The offence was also committed in a location which was a home, and which was, in effect, the victim's temporary home on the morning in question. She was in a place where she should have been entitled to feel safe from predatory conduct like this, but unfortunately was not.

31. In circumstances where the victim had shown no interest in the offender, and indeed was to the offender's knowledge, asleep when the offending commenced, it seems to me that the offender's moral culpability is high.

32. Having regard to all of the facts and the matters to which I referred, I assess the offence as being close to but just below the mid-range of objective seriousness.

SUBJECTIVE MATTERS

33. The offender's background and current circumstances are described in the psychological report of Ms Durkin, and also in a Sentencing Assessment Report. The offender is 55 years of age and was 53 at the time of the offence. He was born in Moree but raised in Newcastle, the only child to his parents’ union. However, his parents split up when he was still very young and he has had no meaningful contact with his father since. He otherwise did not report any adverse aspects of his family life growing up, and denied any exposure to abuse.

34. He completed schooling to year 9 and struggled with school work but was a capable sportsman, especially in playing football. Since leaving school, he has been in regular employment, essentially associated with the building industry and eventually had his own scaffolding business and then a business involved in pressure cleaning.

35. The offender met his wife when they were both in their late 20s. He and his wife have two children, a daughter now aged 20, and a son aged 15. He also has a daughter now aged 30 to an earlier relationship. It is noted in the psychological report of Ms Durkin that in 2009 the offender was charged with sexual offences involving his eldest daughter, but the allegations are denied by the offender and the charges apparently did not proceed to trial. I therefore disregard these earlier allegations.

36. The psychological report notes that the offender has a long history of drug abuse, mainly cocaine, which history he apparently hid from his wife. He also has history of significant alcohol use, and he has had no treatment in relation to these issues.

37. The offender maintained his innocence when speaking to the psychologist about the offence before the Court, claiming that his interaction with the victim was consensual and represented a flattering episode in the nature of a "spontaneous affair." The psychologist made observations, at para 54 of her report, to the effect that the offending conduct appears to have been "associated with impaired functioning as a result of cocaine intoxication and his unstable mood and sense of wellbeing."

38. She also stated that:

"It is considered likely that Mr Katon's unstable mental health, and in particular, depressed affect, has particularly contributed to his decision to act in an abusive and sexually aggressive manner towards the victim in this case."

39. With respect to these observations I make the following comments. Firstly, self-induced intoxication is, of course, not a matter that can provide any mitigation of an offence, even though in some cases, it might go to provide an explanation. But of course, no excuse.

40. Secondly, as to the suggestion that the offender's "unstable mental health" may have contributed to the offence, I note that counsel for the offender indicated that the psychologist’s conclusions about this were not relied upon as being in any way causal or contributory. The comments about the offender's mental health are, however, relied upon in relation to the impact upon him of time in custody, a matter which I will consider later in these reasons. I do not, however, regard anything in the offender's background or circumstances as operating to mitigate his moral culpability.

REMORSE AND REHABILITATION

41. Turning to questions of remorse and prospects of rehabilitation. The offender maintains his innocence and so there is no remorse. While his criminal history is not an aggravating matter, it operates to remove any claim to leniency on that ground. On the positive side, the offender apparently retains the support of his wife, and he appears likely to return to fulltime self-employment upon release.

42. It is noted in the sentencing assessment report that the offender was assessed by the LSI R assessment tool as being a medium risk of reoffending. However, the testing referred to in the psychological report of Ms Durkin suggests a slightly higher risk. Given that the psychologist appears, in her report, to have taken into account a history of sexual allegations from the offender's daughter, which never proceeded to hearing, I put aside her suggestion of a higher risk level. Having done so, I proceed on the basis that the offender, according to the LSI R tool, is around the medium level of risk. In my view he will continue to be a risk of offending to some extent in the future. I assess his prospects of remaining offence free as uncertain and guarded.

43. The psychologist suggested some possible link between the offence and the offender's "impaired functioning as a result of cocaine intoxication and his unstable mood and sense of wellbeing." However, as I have earlier noted, counsel for the offender disavowed any reliance on these being causative or contributory to the offence and limited her submissions to the impact of the offender's mental health on his likely experience in custody. In my view, this concession was appropriately made. In this regard, I accept that the offender's depression and unstable mental health will likely mean that his period in custody will weigh more heavily upon him. I have taken this into account in determining the sentence.

44. I am of the view, however, that personal deterrence, general deterrence, denunciation, retribution, and protection of the community remain important factors in this sentencing exercise.

DETERMINATION

45. In reaching my sentence in this case I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that the purposes of s 5 of that Act, that no penalty other than imprisonment is appropriate. I have made a finding of special circumstances based on this being the offender's first period in fulltime custody, and the need for him to be monitored for a considerable period upon his release.

46. Mr Katon, if you could just stand up and I will announce the sentence.

47. I impose a head sentence of four years imprisonment. I impose a non-parole period of two years, eight months. Each of those will date from 15 August 2023. The head sentence therefore will expire on 14 August 2027, and the non-parole period will expire on 14 April 2026. Thank you. You can take a seat. Nothing to be raised about any of those dates?

45. BROUN: No, your Honour.

46. JEWISON: No, your Honour.

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Amendments

02 July 2024 - Non-parole period expiry date amended.

Decision last updated: 02 July 2024