Director of Public Prosecutions v Butler (a pseudonym)

[2019] VCC 1585

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIAM BUTLER (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2019
DATE OF SENTENCE:	1 October 2019
CASE MAY BE CITED AS:	DPP v Butler (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1585

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Stefanovic	Office of Public Prosecutions Victoria
For the Accused	Mr B. O'Sullivan	Armstrong Legal

HIS HONOUR: 

1Liam Butler[1], you pleaded guilty to one charge of taking part in an act of sexual penetration with a child under 16, in January of 2009. 

[1] A pseudonym

2At the time of the offence, you were 44 years old.  Your victim was a 14 year old boy.  He had known you all your life, as you were a very close friend of his family. 

3You had met the family at a car race in New South Wales.  You were invited to significant family events and joined them during Christmas holidays on a number of occasions.  Daniel Sinclair’s[2] parents allowed their children to go up to your residence in New South Wales on some occasions and on those occasions, you would pay for the children to fly up to visit you.  You would often buy presents for the family's children. Daniel Sinclair’s parents completely trusted you and thought well of you as a known friend to them and their family. 

[2] A pseudonym

4In January 2009, Daniel Sinclair and his family went to spend the Christmas holiday period at a caravan park in a Victorian coastal town, where they had an annual booking for the holiday period.  The caravan had an annex attached to it.  You drove from your home in New South Wales to the caravan park for the holiday period with Daniel Sinclair’s family.  During the holiday, Daniel Sinclair and you slept in the annex on single camp beds.

5One morning the victim woke up and noticed the zipper on his sleeping bag was halfway down.  Daniel Sinclair had tightly closed his sleeping bag around him because of what had happened in the previous month of December of 2008, which I will come to in a moment.  That night you played a drinking game with the victim and his friends at a different campsite.  It ended about midnight, by which time Daniel Sinclair was drunk.  He went to bed in his underwear and fell asleep immediately.  Later in the night, he woke up.  You were kneeling between his legs, pulled down his underwear and you were sucking on his penis.  Daniel Sinclair reacted as soon as he realised what was being done to him, saying, 'Get the fuck off me.  What do you think you are doing?'  You asked him to, 'Please keep it down.'  Daniel Sinclair said, 'You're just fucked.' 

6The next morning you woke Daniel Sinclair up and told him, 'We need to talk about this' and Daniel Sinclair said, 'Fuck off, we'll talk about it later', but at your insistence, he walked with you down to a nearby river.  He was angry and upset.  You told him that he had told you to do it by swearing on your mother's life.  Daniel Sinclair replied, 'Your mother is dead.'  You then told Daniel Sinclair that you had been sexually abused as a child and you added, 'Please don't say it's over' repeatedly.  You asked Daniel Sinclair not to tell his parents and later that day, you left the caravan park. 

7Daniel Sinclair did not tell his parents and over the years that followed, became increasingly angry.  The relationship between Daniel Sinclair’s family and you remained unaltered.  When Daniel Sinclair was 18, in about 2012, the family sent Daniel Sinclair to stay with you to sort out some personal problems.  He drank himself to the point of passing out every day while he was there.  Sometime earlier, he had observed you watching him shower when you came to visit his family home. 

8In November 2014, Daniel Sinclair disclosed the abuse to a friend, crying when doing so.  That December 2014, he attended the Ballarat police station and reported the sexual offending.  Four months later, police assisted him with creating a pretext call to assist the investigation.  You acknowledged doing something to him at his house and at the caravan park and when asked why he had done so, you replied that you had questioned yourself many times over that. 

9In August 2015, you were questioned by police and gave a 'no comment' answer.  Charges were filed in January of 2016.  A committal mention took place in April of that year and it was only in April of 2018 that a committal was run in Ballarat.  This was due to you undergoing a sentence in New South Wales, until you completed a non-parole period. 

10In August 2018, a contested committal took place and prior to
cross-examination of Daniel Sinclair, you entered a plea of guilty and you were bailed to appear before this court. 

11You had been sentenced to two years' imprisonment, with a non-parole period of 18 months by the Local Court in New South Wales for offences upon Daniel Sinclair committed in New South Wales in December of 2008. That is, the month prior to these offences which were committed in January of 2009. You were sentenced in relation to four charges of aggravated indecent assault, charged pursuant to s.61M(2) of the New South Wales Crimes Act, for which the maximum penalty is 10 years, as the victim was under 16 years of age.  The Local Court, having dealt with the matter in New South Wales, the maximum for each offence was two years' imprisonment and the circumstances of aggravation, was that Daniel Sinclair was under your authority. 

12In that December, you had arranged for Daniel Sinclair to come stay with you for two weeks over school holidays.  Daniel Sinclair slept in a double bed in a spare room, while you slept in your own bedroom.  On the first night, you got into bed with him, you rubbed his back and buttocks on the outside of his clothing.  Daniel Sinclair was in shock.  You were breathing heavily.  You remained in Daniel Sinclair’s bed behind him for hours before leaving.  The next morning, you again got into Daniel Sinclair’s bed with him.  You again rubbed his back and stomach and the top of his penis. 

13On the second night, you again went into his bed and massaged his back and buttocks.  You left after doing this for a while and later that week, you again laid beside Daniel Sinclair in his bed and began to rub his back and buttocks.  You were breathing heavily.  Daniel Sinclair returned home and did not disclose what had occurred. 

14You have no pre-sentence detention referable to this case and you have been on bail since the committal in August 2018. 

15The court received into evidence three victim impact statements.  One was from Daniel Sinclair, another from his twin sister and a third from his mother.  As invariably is the case in these type of matters, the statement made for compelling and powerful reading as to the profound impact and harm which this type of offending visits upon victims and their families.

16Daniel Sinclair writes that he had an idyllic country childhood in the bosom of his family.  Then his life changed.  It felt like life was taken away from him.  He dropped out of school in Year 9 because he could not cope.  He obtained an apprenticeship in bricklaying, but by his third year, returned to drug and alcohol use.  He lost his job.  This was a time when you still paid for holidays, gifts and you were still present in the family dynamic, which was hurtful and confusing for him. 

17By age 22 he had attempted suicide twice.  He was drinking heavily, used ice every day in order to escape his mental state.  He felt guilty and confused.  He would self-harm, start fights without reason.  He was aggressive and violent at home.  He struggled to keep relationships going and he describes his state as a destruction.  He remains fearful of others, paranoid and distrustful of dealings with people.  He is perennially angry, particularly as people around him saw you as a generous, supportive good friend, when all along you were the cause of his destruction.

18Holidays were harrowing experiences.  The stress and pain on family has been significant.  The post-traumatic stress disorder has necessitated psychological treatment and medication to attempt to deal with his current myriad difficulties.  This is the sort of impact on victims which the court sees every day. 

19His sister confirmed an early history of family unity and a lifestyle of friendship and positive experiences.  The last four years have been a confusing, grieving process.  You had embedded yourself into their lives, holidays, celebrations.  She feels guilt and anger.  The hurt experienced around these events have caused her to take refuge in drugs and alcohol as well.  She too is now fearful and distrustful, depressed and anxious.  She too had to see a psychologist and was prescribed anti-depressants.  The impact has extended to her nursing vocation into mental exhaustion.  She rescued Daniel Sinclair out of the car in which he was attempting to end his life. 

20Daniel Sinclair’s mother wrote a victim impact statement, in which she describes as her whole world stopping and her life, as she knew it, being over.  She has experienced first-hand her son's descent into an emotional and physical black hole.  Feelings of guilt, shame, failure and fear have impacted her life, with a remnant of hope for healing. 

21I take these victim impact statements into account. 

22I take your plea into account.  You pleaded guilty prior to the contested committal and although the victim was required to prepare to give evidence and attend the court pursuant to your application to cross-examine him, he was spared that ordeal in the end.  Your plea has, in that sense, a utilitarian aspect which must be acknowledged. 

23When the charge was first filed, it was particularised by reference to a date in 2006.  That was in early-2016.  By the time the committal took place, the charge was correctly particularised.  Your plea will reduce your sentence according to operation of law.  I accept that the plea is some evidence of remorse.  Remorse is often a difficult feeling to assess.  I accept that you have expressed remorse for your conduct and this accompanies the plea of guilty made. 

24I take your personal circumstances into account.  You are now 54 years of age.  You grew up in New South Wales.  Your father passed away at age 80 when you were 15.  You completed Year 10 at school and as a fitter and turner, you did an apprenticeship.  You worked for BHP for some years in that occupation.  In 1985 you went to work in the family dry cleaning business, of which you became the owner in 98.  In 2000 your mother developed pulmonary fibrosis and you became her carer as she struggled with this condition and she died in June 2008.  The business collapsed in 2014, after some protracted contention over her estate.  You were bankrupt and had lost your home. 

25Before being incarcerated, you received some psychological counselling and after release on the parole period, you have found employment from August 2018. 

26It was submitted that an assessment of the objective gravity of the offending should lead to a consideration that this offending lies towards the lower end of the scale of the charge of sexual penetration of a child under 16.  These matters are set out from paragraphs 5 to paragraph 10 of the defence submissions.  Although appropriate concessions are made, particularly about the disparity of age between you and the victim, the harm done to the victim and the breach of trust involved in the offending, it was submitted the factors listed at paragraph 9 should lead to the stated conclusion.  I do not accept this submission. 

27Except for ceasing your actions immediately upon hearing the objections of the victim, which is a lack of abrogation, rather than a factor ameliorating gravity, the propositions therein contained do not, in my view, reduce the gravity of your offending.  The age of the victim is not properly seen to be by way of reduced impact because it lies 'towards the upper range of age to which this offending may relate.'  This submission fails to come to terms, not only with the stipulated age in the offence description, but in the more important considerations beyond mere chronological age, which inherently recognise under 19 year olds as still vulnerable and in need of protection.

28The lack of a threat of violence or use of violence is a lack of aggravation, but does not deal with the context created by you, in which your brazen offending took place.  The fact that the offending did not involve the penetration of the victim's body, fails to come to terms firstly with the inherent violation of bodily integrity of the act performed, fellatio in this case and secondly, with the structure of the charge which deals with taking part in an act of sexual penetration.  As to the duration of the fellatio, nothing to support the submission of short duration can be found in the victim's description as to this event. 

29When one considers all the relevant matters, I conclude, this was not offending at the lower end.  In my view, if any such categorisation is helpful, it can only be placed in the middle range of such offending because of the moral culpability which accompanies the act.  It is an escalation of offending from December 2008, in that it has become penetrative and more serious and has progressed from intimate inappropriate touching to penetrative acts. 

30It was acknowledged that the delay in these type of cases is not unusual and no mitigation of itself was sought to be applied by this aspect.  However, it was said that one aspect of delay should be taken into account, that being the rehabilitative efforts made by you in the relevant period since 2009. 

31These were said to be a lack of further offending, voluntary counselling undertaken with Mr Wenzel display an expression of remorse, development of insight into the effect of your offending, your conduct while in reclusion, particularly the undertaking of courses, including a willingness to undergo a sex offender program, undertaking a parole period in New South Wales without incident or breach, ongoing participation in a recovery weekly program, obeying the New South Wales child protection register obligations and maintaining employment since August of 2018.  All of this was achieved, it was put, in the face of the serious pending charge, cognisant of the possibility of being returned to prison in this State.  I accept these aspect of rehabilitation before this court and taken them into account.

32Reports were received by the court.  The first in time was a psychological report from Gerry Wenzel, a psychologist, dated 12 February 2018, which was prepared for the purposes of the plea in 2016 and consequent sentence on
1 April 2016.  In that report, you told Mr Wenzel that there were further episodes that had occurred in Victoria and were to be heard at a later date, which related to engaging in an act of oral sex.  You made a point of telling him that, despite these events, the victim had frequently stayed with you thereafter.  The report discloses no insight into the impact of your offending. 

33You reported being a victim of sexual abuse when you were very young and disclosed ongoing difficulties with intimacy and relationship formation with women and a decision to apparently remain celibate.  He reports severe depression and anxiety amid the consequent cognitive slowing and affecting your decision-making at the time of your mother's death and loss of the business.  He assessed your prospects as favourable, despite engaging in grooming-type of behaviour towards an underage male.  He assessed your risk of relapse as low.  He reported your remorse.

34A report dated 18 November 2018 was received from Dr Mathew Barth, as well as an updated report dated 18 August 2019.  Dr Barth notes firstly that you presented yourself in a distorted, favourable light, reluctant to acknowledge even minor signs of emotional or interpersonal difficulties.  You told Dr Barth your earlier experiences left you very confused about your sexual orientation and you have never participated in a sexual relationship. 

35The periods involving your mother's death and business failure exacerbated your emotional distress.  You asserted a feeling of shame at the charges and had found support from your faith and your local church since being released.  You expressed remorse for your behaviour and Dr Barth described your emotional distress as within normal levels for someone dealing with your predicament. 

36Your sexual identity has remained as functional for a large portion of your life, however, when discussing the events, you did not excuse or rationalise your conduct.  Notwithstanding this, it is clear you require specialist sex offender treatment.  He assessed your risk of recidivism for sexual offending as moderate/low or moderate, according to the tests administered.  Your insight into what factors underpinned your offending is relatively limited and
offence-specific rehabilitation is essential for your prospects, which remain good, in my view, given the lack of further offending and the pro-social and protective factors which do exist around you. 

37In August of 2019, Dr Barth updated the report and noted your commitment to church-related activities and support, as well as work prospects.  These positive gains made at one level are highlighted by a bundle of certificates, Exhibit 2 on the plea, which relate to religious training and doctrines, a Salvation Army Positive Lifestyle program and a number of TAFE vocational courses undertaken whilst in custody or thereafter. 

38A bundle of references was also received, Exhibit 5.  This included references from Crossroads Prison Ministry, Mr Mile, who whom you lived after being released in 2017.  He speaks of the positive effect of employment more recently, as well as community service and some leadership and mentoring, both in church-related activities and at work.  He speaks highly of your rehabilitation. 

39I also carefully read letters from Jason Alexander, the head pastor at Central Church in Warners Bay; Mr Wilcock, a former pastor with whom you have also resided; Liz Roberts from Central Church in Newcastle; your attendance at Celebrate Recovery program, Michael Lockhart; Michael Whitehead; your brother, Jacob Butler[3]; Robert Pullez, a pastor at Central Church; Tim Abbey, the chaplain at Kirkconnell Correctional Centre; a friend, Lara McEwan[4]. 

[3] A pseudonym

[4] A pseudonym

40These are impressive references which highlight your remorse and sustained attempt at reformation, which indicate your prospects are probably good.  I take all and each of these letters into account.  The path undertaken by you to seek to address the matters that have brought you before the court, have been
faith-related and work-related and are to your credit, as well as other recovery and reclamation efforts.  The more specific offence-related work is still to be undertaken. 

41The delay that has occurred in this case in relation to the disposition of this matter, brings into account rehabilitation as a significant factor which I will take into account into an appropriate sentence.  In this sense, specific deterrence and community protection are reduced, if not eliminated, in the sentencing equation. 

42It was submitted that I should consider the rehabilitation undertaken to be an exceptional circumstance which would found a suspended sentence in your case.  In my view, although clearly positively impressive, these efforts and related references do not constitute the sufficient basis for exercising such a disposition.  In my view, that would not adequately deal with principles of denunciation, general deterrence and just punishment.

43In my view, tempered with an appropriate reduction because of the New South Wales matters and subsequent sentence, the principle of totality applies and
I need to explain the situation of the interplay between the New South Wales matters and the Victorian matters.  The application of this principle needs careful consideration on one view, because I was informed that this matter may have been able to be dealt with in New South Wales.  It would have been dealt with in the District Court, that is, the County Court level in New South Wales, not at the Local Court level.

44The allegation relating to Victoria was before the court, because Mr Wenzel's report contained the clear reference to it and the prosecuting and police authorities must have been cognisant of it.  It was submitted that s.66 (a) (e) of the New South Wales Crimes Act 1900 would have allowed for conduct outside of New South Wales, 'to be considered in establishing the charge', because it was submitted, despite the offending occurring in two different States, New South Wales legislation would have allowed this offence to be, 'considered and dealt with in the New South Wales courts.'

45As your legal representatives, or yourself, or for that matter, the prosecutors in New South Wales, did not apparently consider this matter, it was submitted this has caused you the loss of the opportunity to have these matters pertaining to all of the offences, to be dealt with together, rather than separately, as is occurring. 

46In a further submission, dated 27 September 2019, your counsel gave a more detailed analysis of the law of how the investigation unfolded in New South Wales.  I accept the failure to deal with these matters together was not your fault and accept that having to be dealt with separately has caused a disadvantage.  There is, to my mind, no question of double punishment, as
I apply the principle of totality in this case to take into full account of the punishment metered out in New South Wales.  However, I do not in any way consider that these circumstances give rise to exceptional circumstances, as
I have said, to warrant the imposition of a suspended sentence, which would be totally inadequate under the circumstances and not in the interests of justice.

47Although there has been a separation of these matters, the weight of what may be ascribed as a form of extra-curial punishment is taken into account by me in this disposition. I should clarify that the offence of persistent sexual abuse of a child is contained in s.60(c), 66EA, not AE of the Crimes Act in New South Wales.  You were convicted under s.61 (j) of that Act and the provisions of s.66EA would have allowed the New South Wales court to deal with the Victorian offences, as has been done in The Queen v GP [2019] NSWDC 493 of 16 September 2019 and in The Queen v D&M [2018] NSWDC 62 of 23 March 2018.

48I will, as a consequence of these matters, give weight to the sentence you have served in relation to New South Wales offences, in terms of considerations of totality applicable to the overall punishment to be imposed.  In my view, general deterrence is a significant factor in your sentence. 

49In relation to the serious sexual offender provision, having been convicted of four aggravated indecent assaults in New South Wales and sentenced to imprisonment for those offences, I am satisfied beyond reasonable doubt that these offences are substantially similar to a sexual offence in Schedule 1 of the Sentencing Act 1991 of Victoria.

50Sexual offence is defined in s.66EA (12) of the New South Wales Crimes Act to include aggravated indecent assault under s.61 (j).  Therefore I treat these convictions as relevant offences for the purpose of determining whether the offender is a serious sexual offender, as defined in the Victorian Act. 
Section 6B(2), the New South Wales offence being substantially similar to the offence of sexual assault of a child under s.49D(1) of the Crimes Act 1958.
I therefore sentence you as a serious sexual offender for the offence of sexual penetration of a child under 16, with s.6D and F applying. 

51I note that the prosecution did not seek a disproportionate sentence and I do not intend to impose such a sentence. 

52Having pleaded guilty to a Class 1 offence for the purposes of the Sex Offenders Registration Act 2004, you will be sentenced as a registrable offender. The period is determined by the conviction for this above offence, as well as for the Class 2 offences in New South Wales, making the registrable applicable period, the period of life, pursuant to s.34(1)(c)(iii) of the Act.

53I will order that you provide a forensic biological sample, by way of a mouth scraping, or if you do not consent, by the obtaining of a blood sample under s.464ZF for placement on the DNA database.  When a request is made for the taking of such a sample, if you do not consent, the authorised officer can use reasonable force to take a blood sample from you.

54Please stand, Mr Butler.

55On Charge 1 of sexual penetration of a child under 16, you are convicted and sentenced to four years' imprisonment.

56I order that you serve a period of two years and eight months before eligible for parole.

57Yes, thank you. 

58COUNSEL:  May it please the court.

59HIS HONOUR:  Yes, he can be taken down.  Just take a seat for the moment.  You will have to sign some paperwork in relation to your registration. 

60Mr O'Sullivan, the sex offender registration provision which are not part of the sentence but follow on from as a consequence from the sentence, do create a number of serious obligations in relation to ongoing matters for Mr Butler.  I am not sure whether you are going to have a conference with him ‑ ‑ ‑

61MR O'SULLIVAN:  Yes, Your Honour.

62HIS HONOUR:  ‑ ‑ ‑ but if you could explain those matters to him.  A lot of them are outlined in the paperwork he will receive, but those are obligation which are ongoing and substantial and he should be cognisant of the fact that they are monitored and any breach of them will bring him back before the court ‑ ‑ ‑

63MR O'SULLIVAN:  Yes, Your Honour.

64HIS HONOUR:  ‑ ‑ ‑ on a contravention of those requirements. 

65MR O'SULLIVAN:  Yes, Your Honour.

66HIS HONOUR:  I will stand down.   

67(Short adjournment.)

68HIS HONOUR:  Yes.  Thank you, Mr O'Sullivan, you are excused.

69MR O'SULLIVAN:  Thank you.

70HIS HONOUR:  Mr Butler can be taken down.

71MR STEFANOVIC:  If I might be excused?  Mr Albert appears to prosecute in the next matter.

72HIS HONOUR:  Yes, certainly. 

73MR STEFANOVIC:  Thank you.

74HIS HONOUR:  Thank you, Mr Stefanovic. 

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