R v Skuthorpe - [2015] NSWCCA 140

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Skuthorpe [2015] NSWCCA 140
Hearing dates: Monday 4 May 2015
Date of orders: 17 June 2015
Decision date: 17 June 2015
Before: Hoeben CJ at CL at [1];
Hidden J at [2];
Beech-Jones J at [41]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW – appeal by Crown under s 5DA, Criminal Appeal Act on the basis that respondent failed to fulfil undertaking of assistance to authorities – respondent in evidence in sentence proceedings offered to give evidence against alleged co-offender – combined discount for plea of guilty and assistance – respondent failed to give evidence at co-offender’s committal proceedings – whether promise to give evidence amounted to undertaking to assist authorities – failure of sentencing judge to comply with s 23(4), Crimes (Sentencing Procedure) Act – discretionary considerations arising from amount of discount and delay in bringing appeal
Legislation Cited: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Cases Cited: 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
Category: Principal judgment
Parties: Regina (appellant Crown)
Luke Milsap Skuthorpe (respondent)
Representation:
Counsel:
NJ Adams (appellant/Crown)
H Cox (respondent)
Solicitors:
Solicitor for Public Prosecutions (appellant/Crown)
Aboriginal Legal Service (respondent)

File Number(s): 2012/90351
Decision under appeal

Court or tribunal:

District Court of NSW at Newcastle

Jurisdiction:

Criminal

Date of Decision:

31 January 2013

Before:

Berman SC DCJ

File Number(s):

2012/90351

Judgment

HOEBEN CJ at CL: I agree with Hidden J.
HIDDEN J: This is an appeal by the Director of Public Prosecutions, pursuant to s 5DA of the Criminal Appeal Act 1912, on the basis that the respondent failed to honour an undertaking to provide assistance to the authorities, for which he had received a benefit on sentence. Section 5DA relevantly provides:

“(1) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking.
(2) On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit.
… .”

The respondent pleaded guilty in the Newcastle District Court to an offence of aggravated sexual intercourse without consent. He signed an agreed statement of facts, the effect of which can be stated briefly. The offence took place in an inner city Newcastle park. The respondent had penile/vaginal intercourse with the complainant over her resistance. Another man, who was with him, put his penis into her mouth and his finger into her vagina. Both men were strangers to her.
The respondent was sentenced to imprisonment for 7 ½…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Skuthorpe

Details

AGLC: R v Skuthorpe [2015] NSWCCA 140
Case: [2015] NSWCCA 140
Decision Date: 17 June 2015

CaseChat Overview and Summary

In the matter of the Crown versus Skuthorpe, the Court of Criminal Appeal considered an appeal brought by the Crown under section 5DA of the Criminal Appeal Act. The appeal sought to address the issue of whether the respondent had failed to meet an undertaking to assist authorities in the prosecution of an alleged co-offender. During the sentencing proceedings, the respondent had indicated a willingness to provide evidence against the co-offender. This offer was part of a plea bargain which included a discount in the sentence for the respondent's plea of guilty and a promise of assistance. However, the respondent did not provide the promised evidence during the co-offender's committal proceedings. The central legal question was whether the promise to provide evidence constituted an undertaking to assist authorities, and if the sentencing judge had failed to comply with section 23(4) of the Crimes (Sentencing Procedure) Act by not addressing the respondent's breach of this undertaking.

The Court of Criminal Appeal carefully examined the nature of the undertaking and the implications of its breach. It considered the circumstances in which the promise was made and the extent to which it constituted a formal undertaking. The court also evaluated the significance of the discount in the sentence that was contingent upon the respondent's assistance. In reaching its decision, the court assessed the sentencing judge's handling of the matter and whether the failure to address the breach of the undertaking was a significant error. The court found that the promise to provide evidence did indeed amount to an undertaking, and the sentencing judge's failure to address the breach was a material error that warranted the appeal. Consequently, the court concluded that the appeal should be allowed, and the case was remitted for resentencing.

In light of the above, the Court of Criminal Appeal allowed the appeal and remitted the matter to the sentencing court for resentencing. The court emphasised that the sentencing judge must now address the breach of the undertaking in accordance with the provisions of the Crimes (Sentencing Procedure) Act, ensuring that the respondent's failure to assist authorities is properly considered in determining the sentence. The court also noted that the significant discount previously applied due to the promise of assistance should be reconsidered in light of the respondent's non-compliance with the undertaking.

Orders