R v Skuthorpe [2013] NSWDC 50

District Court New South Wales

Medium Neutral Citation: R v Skuthorpe [2013] NSWDC 50 Hearing dates: 31 January 2013 Decision date: 31 January 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 5 years and a head sentence of 7½ years. Catchwords: CRIMINAL LAW - Sentence Sexual intercourse without consent in circumstances of aggravation - Vulnerable intoxicated victim - In company Legislation Cited: Crimes Act Category: Sentence Parties: The Crown Luke Milsop Skuthorpe Representation: Mr Barnett - The Crown Mr Z Khan - The Offender Director of Public Prosecutions File Number(s): 2012/90351 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant

SENTENCE 1HIS HONOUR: Mr Skuthorpe's behaviour leading up to the commission of a most serious sexual offence does him no credit at all. He was given a suspended sentence for an office of stalking or intimidating. He breached that bond by the commission of an offence of driving whilst disqualified. He was called up and full-time imprisonment was imposed. He appealed that decision to this court and an intensive corrections order was substituted, which he again breached once more by an offence of driving whilst disqualified. He went to gaol for various offences and was released to parole on 18 December 2011. Only two weeks later he took advantage of a vulnerable 14 year old girl, having sex with her whilst another man did the same. 2He pleaded guilty, on the day his trial was due to commence, to an offence of having sexual intercourse with the complainant without her consent, knowing she was not consenting, in circumstances of aggravation, those circumstances relating to her age, (she was only 14 years of age) and the fact that the offender was in company at the time. That is an offence carrying a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. 3I have taken into account both the maximum penalty and the standard non-parole period in determining the appropriate sentence to impose on Mr Skuthorpe. My reasons for not imposing the standard non-parole period are to be found in these remarks on sentence. 4The complainant in this matter was, when she first encountered the offender, heavily intoxicated. She was having difficulty standing and difficulty moving, when she was approached by the offender and two others, in the vicinity of the Newcastle Railway station. The offender engaged her in conversation. She did not know him and had never seen him or his companion previously. The offender tried to talk to her and tried to kiss her. He took her into the park at the rear of the Customs House Hotel, where there was a park bench. He continued to try and kiss the complainant and fondle her. He then led her further into the park. He put the complainant on the ground, took her pants and underpants off her and threw them away. At this time he was joined by another man. He, the offender, had penile/vaginal intercourse with the complainant, ignoring her resistance. At the same time as this happened, the other male put his penis into the complainant's mouth. He also put a finger into her vagina. As this happened, the complainant was being told, "You love this" or "You're loving this". The offender then ejaculated inside her, got off and he and his companion walked away, leaving the complainant lying on the ground. 5She recovered her clothing and eventually revealed what had happened to her. She was taken to hospital, where a forensics examination revealed the presence of semen in her vagina, which upon testing, proved to produce DNA which matched that of the offender. 6He was arrested in March 2012. He was interviewed by police and told them a pack of lies. He, at first, denied that he had intercourse with the complainant. Then, when he was told that his DNA had been recovered, he said that he had put his finger in the complainant's vagina. When confronted with the circumstance that the DNA that was recovered was recovered from semen, he not surprisingly, had no explanation. But he did continue to deny that he had intercourse with the complainant. 7Those denials continued until the very day this matter was listed for trial, when he, belatedly, pleaded guilty to the offence for which he must now be sentenced. 8Of course that plea still has a utilitarian benefit and so the offender is entitled to a discount on the sentence that would otherwise be imposed to reflect that circumstance. But the lateness of the plea does call into question whether the offender is truly remorseful for what he did at the very beginning of 2012. 9Whilst I am talking about discounts, I should at this stage mention this circumstance. The offender knows who the other man was. He knows who the man was who put his penis into the complainant's mouth. He has not yet been arrested. There is a warrant out for his arrest but that has not been executed. The offender gave evidence in court before me, that should his offender be arrested, he is willing to give evidence against him. The offender is also therefore entitled, to a reduction on his sentence to reflect his willingness to assist the authorities. Combining both the discounts for pleading discounts and the discounts for assistance, meaning that I will impose upon the offender a sentence which is approximately 20 per cent less than it would otherwise have been. 10The offender is now 26 years of age. He was born in Bourke and grew up in western New South Wales. He lived with his mother and father, but was in custody when his father got sick and later died. He went to school until year 11 and after high school, worked as a jackeroo in western New South Wales. In order to perform that job he had to get certificates, which he had obtained whilst he was studying in high school. He also obtained certificates later on, as far as his work in conservation and land management is concerned, which he commenced doing in 2010. At one stage he went to Darwin to study and had no trouble with the police up there. But he came back to Dubbo and worked as a jackeroo again, before moving to Newcastle in 2010, to get a fresh start. 11He has a child who is now six, going on seven, who lives with his mother in Orange. The offender sees him as much as he can and has a good relationship with him. 12The offender has a problem with alcohol. He started drinking at 14. He started using cannabis about the same age and often drinks to the point where he passes out. He has used other drugs on occasions, but not very often. He has used speed, for example, only once and that was on the night that he committed this offence. 13This is a very serious offence. It is an offence, as I have already noted, of penile/vaginal intercourse, where the offender ejaculated whilst his penis was inside the complainant's vagina. That form of intercourse is traditionally regarded as one of the most serious forms of intercourse covered by that term. What the offender did carried with it the risk of communicating a disease. It carried the risk that the complainant could become pregnant and it was, it has to be noted, an intensely personal activity. He was a complete stranger to the complainant, who was vulnerable because of her substantial level of intoxication. 14It is to be noted that, not only was the offender in company with his co-offender, but they both had sex with her at the same time. An offence committed in company can be committed where the co-offender simply stands by and watches. The fact that the co-offender actually participated in sexually assaulting the complainant at the same time the offender was, is one of the many factors that make this a particularly serious example of the offence. 15There are factors which point the other way. For example, the complainant was 14 and it would have been a more serious offence had she been younger. Similarly, there were only two people in company that night and it would have been more serious if there were more of them. 16Some other factors relied on by Mr Khan as suggesting that this offence was less serious than it would otherwise have been are, upon analysis, not properly to be taken into account in mitigation. For example Mr Khan relied on the circumstance that the injuries were not worse. He relied on the circumstance that the complainant's liberty was not taken from her. Both of those matters would have led to a more serious offence being committed, one under s 61J(a) of the Crimes Act, rather than one under 61J of the Crimes Act. It is not a matter of mitigation of an offence under s 61J, than a more serious offence under 61J(a) was not committed. 17Of course paramount in this sentencing exercise has to be the idea of general deterrence. Young girls should be entitled to go out, drink to the point of vulnerability but then get home safely, without being raped by people who would take advantage of their vulnerability to satisfy their sexual urges. 18Of course, we would prefer that 14 year old girls not get heavily intoxicated, but they will. And it is part of the function of the courts to do what they can to protect vulnerable, intoxicated young girls from the predatory actions of people such as the offender. 19This was an opportunistic offence and it would have been much worse, had the offender planned what he later did. I note that the offender was on parole at the time of this offence, that is a seriously aggravating factor. However, I will not double count by both regarding it as a circumstance of aggravation and commencing this sentence from a date after the offender's arrest. I will commence the sentence on 21 March 2012. 20The accused has a lengthy criminal history, but there is no other matter involving a sexual offence on it. That suggests the possibility that this will be an isolated offence of this type. Certainly, the sentence I am about to announce on the offender will act as a significant personal deterrent to him doing something, anything like this in the future. 21He is, if I can say so without appearing to be condescending, a clever man. He has obtained certificates and spoke very well in the witness box. The trouble is that he continues to offend. There are prospects that he will be rehabilitated. There are good prospects that he will commit no further sexual offence. But much depends on him dealing with the problems that he has with the consumption of alcohol and other drugs. That is one reason that I will make a finding of special circumstances in the offender's favour. Not as a favour to him, necessarily, but in order to assist his rehabilitation so that the community is protected. If he can be rehabilitated from further offending then the community is, to that extent, advantaged. 22I am not entirely sure that the offender is truly remorseful for what he has done. There are factors pointing both ways. His late plea, I have already mentioned, but working the in other way is, the offender's assistance. The offender understands what he has done, looking at it in terms of the vulnerability that his younger sister has displayed. Not without some hesitation, I will make a finding that the offender is sorry for what he has done, even if he at times was hoping that he would not have to face punishment for it. 23Mr Khan helpfully provided some written submissions and even more helpfully provided a range of sentences which he submitted would be appropriate. The sentence I will announce is slightly above the range suggested by Mr Khan, primarily, because as my assessment of the objective seriousness of the offender's conduct. 24The offender is sentenced to imprisonment. I set a non-parole period of five years to date from 21 March 2012 with a head sentence of seven and a half years. The non-parole period will expire on 20 March 2017, on which day the offender is eligible to be released to parole.