R v Katon [2023] NSWDC 640

District Court New South Wales

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 1. 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. 2. 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. 3. JS drove KR to his home in Buchanan where he lived with his parents. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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." 12. 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." 13. 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". 14. 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. 15. 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.