R v Skuthorpe

1. [1]

   HOEBEN CJ at CL: I agree with Hidden J.

2. [2]

   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:

3. [3]

   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.

4. [4]

   The respondent was sentenced to imprisonment for 7 ½ years with a non-parole period of 5 years, after the sentencing judge had allowed a combined discount for his plea of guilty and assistance to the authorities. It is that discount which is at the heart of this appeal.

5. [5]

   When he was arrested, the applicant told police in a recorded interview that there had been an encounter with the complainant, but he denied having had intercourse with her. It appears from the statement of facts that DNA consistent with his had been detected on a vaginal smear taken from the complainant, but there was no evidence of the identity of the other man said to be involved. In the interview the respondent revealed that he had been in the company of a man said to be his cousin, Darren Nean. However, the effect of his account was that Mr Nean had not been in the park at the relevant time and had not had any sexual contact with the complainant. A warrant was issued for Mr Nean’s arrest, but at the time the respondent was sentenced it had not been executed.

6. [6]

   The respondent gave evidence in the sentence proceedings. This included the following (in-chief):

7. [7]

   He gave further evidence on this issue in cross-examination:

8. [8]

   In his remarks on sentence the sentencing judge referred to the utilitarian discount to which the respondent was entitled because of his plea of guilty, noting that it had been a late plea. It was entered on the day the matter was fixed for trial. His Honour continued:

9. [9]

   The respondent had not made a statement to police setting out the evidence he could give against Mr Nean. Nor had he signed a written undertaking to give evidence.

10. [10]

    Mr Nean was subsequently arrested, and at his committal proceedings the respondent was called in the prosecution case. He had indicated before he entered the court that he was not prepared to give evidence at all. After he had been sworn he said that he was not going to give evidence and wished “to remain silent.” Insofar as he did answer questions, he claimed not to recall the incident at the park. Taken to his evidence in his sentence proceedings, he said at different stages that he did not recall it or that he told lies. He said that he did not recall saying that he was prepared to give evidence against Mr Nean.

11. [11]

    He denied that he had been threatened or been told in custody that he would be advised to keep his mouth shut. He said that he had not been told at any stage that if he did not honour his promise to give evidence against Mr Nean he could be re-sentenced. This led to the following exchange:

12. [12]

    The only evidence of Mr Nean’s involvement was that anticipated from the respondent. As it was not forthcoming, Mr Nean was discharged.

The appeal

1. [13]

   In this court the Crown prosecutor submitted that the respondent had given an undertaking to assist law enforcement authorities, within the meaning of s 5DA(1), that he had clearly failed to honour it when he was called at the committal proceedings and that, accordingly, the sentencing process had miscarried. The rationale of s 5DA was explained, by reference to authority, by James J in R v Douar [2007] NSWCCA 123 at [29]:

2. [14]

   Provision for reduction of sentence where an offender has provided assistance to the authorities, or has undertaken to do so, is to be found in s 23 of the Crimes (Sentencing Procedure) Act 1999. Relevantly for present purposes, that section provides:

3. [15]

   At issue in this appeal is the content of any undertaking said to have been given by the respondent, whether the sentencing judge in fact reduced the sentence he imposed because of an undertaking to assist in proceedings against Mr Nean and, if so, the extent of that reduction. A combined discount of “approximately 20%” for the respondent’s plea of guilty and his “willingness to assist the authorities” would not comply with s 23(4), because the proportion of that discount referable to the assistance was not specified.

4. [16]

   The failure to comply with subs (4) did not invalidate the sentence: subs (6), but it put the Crown prosecutor in this court to an educated guess about the reduction of sentence the respondent’s assistance had earned him. He noted that the late plea of guilty would be likely to have earned a discount of the order of 10%, and he argued that it “would have been apparent to the parties” that his Honour was allowing 10% for the plea and a further 10% for the promised assistance. It should be noted that at the sentence proceedings counsel for the respondent had submitted that a 10% discount for the plea was appropriate.

5. [17]

   Insofar as subs (4) distinguishes between past and future assistance, the Crown prosecutor submitted that the whole of the 10% discount was referable to future assistance. While the respondent had named Mr Nean during the police interview as the person who had been with him on the occasion in question, he did not inculpate him until his evidence in the sentence proceedings. In reality, the Crown prosecutor argued, there had been no past assistance.

6. [18]

   The primary submission of counsel for the respondent, Ms Cox, was that the respondent had not given an undertaking to assist law enforcement authorities capable of invoking this court’s jurisdiction under s 5DA. She relied on R v Stavropoulos [2007] NSWCCA 333, also a Crown appeal under s 5DA. There is no need to recite in any detail the course of events in that case. The respondent had pleaded guilty to an offence of aggravated kidnapping and had made a statement to police implicating two co-offenders. The sentencing judge had reduced his sentence in anticipation that he would give evidence against those co-offenders. The Crown’s complaint on appeal was that he departed significantly from his statement to the police when he gave evidence at the co-offenders’ trial. However, the appeal turned not upon whether he had failed to fulfil an undertaking to give evidence but, rather, whether he had given such an undertaking in the first place.

7. [19]

   The leading judgment was given by Hall J, with whom McClellan CJ at CL and Price J agreed. His Honour noted at [36] that the sentencing judge had allowed a “rolled-up” discount for the respondent’s plea of guilty and his assistance. That was a practice consistent with authority at the time, but it should be understood that the case was decided before subs (4) was inserted into s 23 by a 2010 amendment. There was no letter of assistance from police before the court. The Crown had not suggested that the respondent had given a written undertaking to provide future assistance, nor was there any record of an obligation on his part to give evidence against the co-offenders: [35]. Nevertheless, in his remarks on sentence the sentencing judge had observed that the respondent’s statement to police was the “evidence that he is prepared to give in court” and that it was “likely” that he would be called as a Crown witness: [36], [37].

8. [20]

   Hall J noted at [38] that “the sentencing judge spoke in terms of a willingness or preparedness by the respondent to give evidence, rather than there being any reference to an undertaking or an obligation by him to do so.” He observed at [42] that it was common ground that the respondent’s statement to police constituted “assistance” within the meaning of s 23, and that the issue was “whether or not the respondent also undertook to further assist the Crown by having given an undertaking to assist in proceedings against his co-offenders.” The respondent had not given evidence in the sentence proceedings. In submissions to the sentencing judge his counsel said that it was “proposed” that his client would give evidence, while acknowledging that his statement was inconsistent with the statement of the victim in relation to a significant matter and that the Crown might see “a potential difficulty” in calling him as a witness. The Crown prosecutor in the sentence proceedings said that it would “end up being a matter for the trial Crown as to whether this witness will be called”, adding that it might be seen that his statement “may not have been as full and frank as what we had wished for”: [45], [46].

9. [21]

   Hall J said at [56]:

10. [22]

    His Honour noted at [59] that there was no evidence that the respondent’s statement was an induced statement, and that it began with the conventional opening paragraph:

11. [23]

    At [60] his Honour summarised the relevant features of the case as follows:

12. [24]

    His Honour expressed his conclusion at [61], as follows:

13. [25]

    While acknowledging that the present case is not on all fours with Stavropoulos, Ms Cox argued there are relevant similarities and that the approach of Hall J should be adopted here. She noted that the matters in s 23(2), relating to the significance, value and implications of assistance of authorities, were not addressed. In particular, his Honour did not consider the reliability of the evidence the respondent said he was prepared to give against Mr Nean: subs (2)(c). Ms Cox observed that in the recorded interview he had not inculpated Mr Nean at all, and in his evidence he said that Mr Nean had oral intercourse with the complainant but denied that he had inserted his finger into her vagina, even though he had signed a statement of facts asserting both those things. Ms Cox argued that at the time of the sentence there was a real question whether, given these inconsistencies, the Crown would have called him as a witness in any proceedings against Mr Nean.

14. [26]

    Ms Cox also relied upon the course of addresses in the sentence proceedings. As to assistance, counsel for the respondent had said no more than that his Honour had “also heard his evidence in relation to the assistance that he would be willing to give the police in relation to the co-offender.” More importantly, all that was said about it by the Crown prosecutor was as follows:

15. [27]

    Ms Cox submitted that what the respondent said in evidence fell short of an undertaking to assist the authorities within the meaning of s 23 of the Crimes (Sentencing Procedure) Act and s 5DA of the Criminal Appeal Act. The effect of her argument was that his Honour’s combined discount of sentence was intended merely to recognise the respondent’s expressed willingness to give evidence against Mr Nean as a subjective matter in his favour. If his Honour had intended to allow a discount for future assistance capable of being adjusted by this court if it were not provided, she argued, he would unquestionably have spelled out the matters required by s 23(4). In fact, neither in his Honour’s remarks nor in the addresses of counsel was there any reference at all to s 23.

16. [28]

    Ms Cox submitted that, if the court found that there was an undertaking by the respondent to give evidence and the court were minded to intervene, there should be seen to have been a component of past assistance. She argued that the respondent’s revelation in the police interview of the identity of Mr Nean was itself of value, leading to the issue of a warrant for his arrest. Accordingly, she submitted, if we were satisfied that 10% of the discount should be attributed to assistance, 5% of that should be referable to past assistance. Otherwise, Ms Cox argued that the appeal should be dismissed on discretionary grounds, to which I shall turn later.

17. [29]

    The Crown prosecutor in this court emphasised that, unlike Stavropoulos, in the present case the respondent gave evidence in the sentence proceedings in the course of which he volunteered to give evidence against Mr Nean. The Crown Prosecutor relied upon the evidence I have quoted above, particularly the emphasised passages. Read as a whole, he submitted, the evidence amounts to an undertaking by the respondent to give evidence. Equally, he argued, the respondent must have understood that a proportion of the discount of sentence he received was referable to that undertaking and was allowed in the expectation that he would honour it. Moreover, given that his counsel had sought a discount of 10% in recognition of the plea of guilty, he would have understood the discount for assistance to have been of the same order.

18. [30]

    The Crown prosecutor noted authority that, for the purpose of s 5DA, an undertaking need not necessarily be in writing. In R v O’Brien (CCA, unreported, 10 June 1993), Gleeson CJ (with whom Sheller JA and Newman J agreed) said (at p 2):

19. [31]

    The Crown prosecutor acknowledged that there were issues of credibility affecting the evidence the respondent might have given in the proceedings against Mr Nean. However, he argued that at the very least the evidence would have pointed to Mr Nean as the second man involved in the incident as the complainant had described it. He also acknowledged that his Honour had not said anything in his remarks on sentence about his evaluation of the potential evidence and, more importantly, had not complied with s 23(4). He argued, however, that allowance should be made for the fact that his Honour’s remarks were delivered ex tempore in proceedings in a regional court.

20. [32]

    This is an unusual case. In evidence in the sentence proceedings the respondent made what appears to have been an unsolicited offer to give evidence against Mr Nean. In that respect this case is distinguishable from Stavropoulos. The respondent also made it clear enough what the effect of his evidence would be. I would infer that his Honour’s combined discount of sentence took that offer of assistance into account in the expectation that the respondent would give the evidence.

21. [33]

    I accept the Crown prosecutor’s submission that the discount was directed only to future assistance. So much is apparent from his Honour’s reference, in the passage from his remarks on sentence quoted at [8] above, to his “willingness to assist the authorities.” While it is true that the respondent’s revelation of the name of his companion in the police interview enabled that person to be identified, that was of no value unless he was prepared to give evidence against him. That was the view taken by this court in a case involving a similar situation: R v Carriage [2009] NSWCCA 147, although it should be noted that senior counsel for the respondent in that case put no submission to the contrary.

22. [34]

    The difficulty that his Honour did not specify the proportion of the combined discount referable to assistance was addressed in supplementary submissions by counsel for the parties. It is open to this court to make its own assessment of the appropriate discount. That was the course taken in R v GD [2013] NSWCCA 212, where a rolled-up discount for a plea of guilty and assistance had been allowed. It appeared to the court that the sentencing judge had reduced the sentence because of past and future assistance. The court’s approach was expressed by Button J, with whom Leeming JA and RA Hume J agreed, at [39]:

23. [35]

    In the circumstances, then, I am persuaded that the respondent did give an undertaking, embraced by s 5DA(1), to give evidence against Mr Nean and that undertaking earned him a discount of the order of 10%. It is, of course, not in dispute that he failed to fulfil it. I should add that the fact that neither his Honour nor counsel expressly referred to s 23 is significant only to the extent that it may indicate that its requirements were overlooked. The exchange between the Crown prosecutor and his Honour set out at [26] above suggests that the prosecutor was inviting his Honour to assess the reliability of the respondent’s anticipated evidence, consistently with s 23(2)(c), although his Honour’s remarks do not disclose that he did so.

24. [36]

    The question remains whether this court, in its discretion, should intervene and adjust the sentence accordingly. With the wisdom of hindsight, it might have been preferable to adjourn the proceedings in the light of the respondent’s evidence to see whether he was prepared to make a statement to the police and to sign an undertaking to give evidence against Mr Nean. However, this court must deal with events as they occurred in the District Court. There is no doubt that, where the prerequisites for a successful appeal in s 5DA(1) are established, the court retains a discretion as to whether it should intervene: R v KS [2005] NSWCCA 87 at [21]. Ms Cox relied on two matters to support a submission that this court should stay its hand: the relevantly small discount involved and the delay in bringing the appeal.

25. [37]

    As to the size of the discount, Mrs Cox relied upon the proposition that only 5% was referable to future assistance but maintained her argument even if it were 10%. To deprive the respondent of the benefit of the 10% discount would mean an increase in the head sentence of about 10 months (and, proportionally, of about 6 months in relation to the non-parole period). That effect would not be insignificant and I do not think that, standing alone, it should prevent this court from adjusting the sentence.

26. [38]

    However, the delay in bringing the appeal is significant and, in my view, the combination of the two matters mitigates against allowing the appeal. The respondent was sentenced on 31 January 2013. He was called to give evidence in the committal proceedings against Mr Nean, when he failed to fulfil his undertaking, on 22 April 2014. It was nearly 9 months later, on 9 January 2015, when the appeal was lodged. The Crown prosecutor in this court frankly acknowledged that there was no explanation for that delay other that it being “symptomatic of a regional office.”

27. [39]

    For these reasons I am of the view that the appeal should be dismissed. However, to those two discretionary matters I would add another: the failure of the Crown prosecutor and counsel for the respondent in the District Court to draw his Honour’s attention to the requirements of s 23(4). It is important that the subsection be complied with. This court should not have to undertake the task which it did in GD. The purpose of the subsection is to ensure that the offender is left in no doubt about the extent to which his or her sentence has been reduced by assistance to the authorities, both past and future, and that, in the event of a s 5DA appeal, this court is in the same position. It is incumbent not only on the sentencing judge, but also upon the legal representatives of the parties, to ensure that these matters are addressed.

28. [40]

    I would dismiss the appeal.

29. [41]

    BEECH-JONES J: I agree with Hidden J.