Director of Public Prosecutions v Butler (Pseudonym)

[2016] VCC 373

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

AT MELBOURNE

CRIMINAL JURISDICTION  

DIRECTOR OF PUBLIC PROSECUTIONS

V

MICHAEL PATRICK BUTLER
(a pseudonym)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING :	Trial – 1, 2, 5, 8-12, 15 February 2016 Plea – 31 March 2016
DATE OF SENTENCE:	5 April 2016
CASE MAY BE CITED AS:	DPP v Butler (Pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 373

REASONS FOR SENTENCE
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Subject: criminal law-sentence          

Catchwords: offender found guilty by jury of one charge of indecent act upon a child under 16, and one charge of sexual penetration of a child under 16, in the care of the offender- pleas of guilty to one charge of theft, one charge of criminal damage and one charge of failing to answer bail – single instance of offending - offender aged 39, complainant aged 15 – both intoxicated – breach of trust – 5^th and 6^th limbs of Verdins – suffering depression – burden of knowing of suffering of family and young daughter not being able to visit in prison – delay.

Cases Cited:Verdins v R  

Sentence:  TES of 10 months with a two year CCO.

NOTE: Pseudonyms have been used for the Offender and complainant to protect the identity of the complainant.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms McDougall	OPP
For the Offender	Mr C.G. Mandy	Slades & Parsons

HER HONOUR: 

1Michael Patrick Butler[1], you have been found guilty by a jury of one charge of committing an indecent act with a child under the age of 16 and one charge of sexual penetration of a child under 16.  You have also pleaded guilty to one charge of theft; one charge of criminal damage; and one charge of failing to appear on bail.  The maximum sentences for committing an indecent act and for sexual penetration of a child under your care when the child was under 16 are ten years and 15 years' imprisonment respectively.  For theft and criminal damage, the maximum penalty is ten years, and for failing to answer bail,

[1] Pseudonym

12 months.

2The trial as to the first two indictable charges took place in February and you have been in custody since the verdict.  Apart from failing to appear on bail all of the offences occurred on the same occasion in the following circumstances.

3On the weekend of 4 and 5 August 2012, you were at home with your wife and children.  Your 15 year old niece, Emma[2], the daughter of your wife's sister, was staying with you, together with two other guests who were friends of the family.  Emma was a regular visitor, being the same age as your son and she had a close relationship with your wife.

[2] Pseudonym

4On Saturday 4 August, you and your wife, one of the other guests and Emma went to a nearby pub for dinner where all the adults had alcohol to drink.  On returning to the house you and the other adults continued drinking and Emma drank alcohol as well.  Your wife fell asleep on the couch and you and Emma became increasingly affected by alcohol. 

5Eventually in the early hours of Sunday morning, your wife went to bed and your friend prepared to do so.  You suggested to Emma that you and she go next door to the neighbour's property to swim in their pool.  The owner of the next door property was asleep in the house with his adult son.  The two of you went into the back garden where you both threw garden furniture and other items into the pool.  You went into a shed in the garage and took items from there and threw some of them into the pool.  You took beer from a fridge and drank it.  You opened the doors of two cars and took wallets, which were later found in the pool.  Power tools and other items were found discarded in bushes on the property.

6During this time at the next door property you kissed Emma on the mouth a number of times and grabbed her on the bottom.  Those instances are not the subject of any charges and you are not being punished for that behaviour.  On returning to your own property you and Emma went into a guest room at the back of the house.  You kissed each other and when Emma's pants were removed you licked her vagina.  That is Charge 1.

7You then inserted your penis into her vagina and asked her if she wanted you to stop.  She said she did want you to stop, so you did.  She then put her pants back on and the two of you returned to the house where Emma went to sleep on the couch.

8Emma's father reported the matter to the police on 13 October and Emma made a statement on the 18th.  You were contacted by the police a few days later and you were charged in August 2013.  The committal was listed for 25 February 2014, but you did not attend and a warrant was issued for your arrest.  You were at large until 26 March 2015, when you were arrested and remanded in custody until August 2015, when you were released on bail.

9At the time of the offending you were aged 39.  You are now 42.  You were born in England and came to Australia with your wife and child in 2005.  Your parents had separated when you were a small child and your mother remarried.  Your stepfather had adult children, one of whom, sadly, sexually abused you as a child, a matter you say you have not dealt with emotionally.  You had a shaky start with employment after leaving school, because of exposure to drug use and an undesirable peer group, but after two years of unemployment you acquired skills which saw you consistently employed as a panel beater, then as a boiler maker and you have remained working in that trade ever since.

10In Australia, you and your wife had two more children.  Your sons are now aged 19 and 16 and your daughter is eight.  You and your wife separated temporarily in 2010 and again following the offending in 2012, on a permanent basis.  You found the initial separation difficult and around the same time your business failed, requiring you to enter into a bankruptcy arrangement.  Both these stressors took their toll on you, but you continued working as a wage earner. 

11These details are set out in the report provided by the psychologist, Mr Tim Watson-Munro, dated 13 August 2015.  That report was obtained in preparation for a bail application that resulted in your release on bail until your trial this year.

12You had been drinking alcohol excessively over the years, which affected your mood and your capacity to work.  Following the initial separation from your wife, you attempted suicide and were briefly hospitalised, following which you saw a psychologist for a short time.  Clearly abuse of alcohol played a significant part in the offending.

13After you absconded, you continued working and providing money for your family, but you had no contact with them and you only saw the children from a distance.  In your absence from the family, your ex-wife struggles to provide for herself and the two children who remain at home.  Your eldest son was the only child able to visit you in prison initially and your younger son is now old enough, but your daughter cannot visit, nor are you allowed by the authorities to have a photograph of her.  You are greatly saddened by these circumstances and miss your children very much.

14Your wife's sister and her family had also come here from England and the family was a close one.  The offending has caused a division in the family which has caused much grief.  You are very conscious of the multiple consequences of what occurred and that weighs heavily upon you in custody.  I take that into account as a mitigating factor, together with a number of other matters.

15In the opinion of Mr Watson-Munro, you have been suffering from a major depressive order for many years and according to Dr Pearce, your general practitioner, you have also experienced a yet to be diagnosed mental health disorder since before the offending, with symptoms suggestive of a personality disorder or bipolar disorder.  I note that Mr Watson-Munro had a copy of Dr Pearce's report when he assessed you last year but he made no comment about that uncertain diagnosis.  The condition of depressive disorder is said to give rise to the fifth and sixth limbs only of the principles in the decision of Verdins, because it is likely to make the experience of imprisonment more burdensome than otherwise.  In addition, as I said earlier, you remain unable to have visits by your daughter with whom you are very close, and you are being held in protection because of the nature of the offending. 

16I also take into account your otherwise good character, that you are a person with no prior convictions, other than for a driving charge, and you have earned the loyalty and admiration of a number of people who have taken the trouble to write references for you.  Three of your friends attended your committal hearing and trial regularly and they stand by to offer you ongoing support and employment when you are released.  Your ex-wife supports you as well.  All these people see your offending as being entirely out of character for a man who is hardworking, a good provider for the family and a devoted father.

17In particular, Mr Miller referred in his carefully written reference to the loss and suffering you have endured over the past few years, since  you were first spoken to by the police.  This was also the focus of Mr Mandy's plea on your behalf, that you have suffered repeated separation from your family and have all along been conscious of the regrettable consequences of the offending upon many people.  One of those periods of separation was your decision to abscond and not appear at your committal hearing, which of course contributed to the delay which has occurred.  You were at large for about a year, time in which the committal and trial could have been heard.

18It can be said with reasonable confidence that the very nature of the mitigating factors make it less likely that you will ever offend again.  Added to this are the circumstances of the offending that had all occurred on the same occasion when you were very intoxicated and that there was no planning, but rather it occurred in the context of the situation you found yourself in that night.

19Your prospects for rehabilitation are clearly very good and I am satisfied that the risks of re-offending are low.  Consequently I need place little emphasis on the need for specific deterrence in sentencing you.

20During the plea hearing Mr Mandy reminded me of the complainant's expression at the special hearing, but not admitted into evidence, that she did not wish you to be imprisoned.

21The need for general deterrence is a different matter because of the nature of the sexual offending.  The complainant was in your care at the time and there was a gross breach of trust, something which clearly weighs heavily on her parents, who said so in the victim impact statements they provided.  They spoke also of the way their daughter suffered afterwards, not being interested to go to school any longer and, in her distress, inflicting physical harm upon herself by cutting her arms.  She was a vulnerable 15 year old girl, you were a mature adult, some 24 years older.  Such exploitation must be clearly denounced by the courts in terms of the sentence imposed, subject of course to the mitigating factors brought to bear by the circumstances in which the offending occurred and your own personal circumstances.

22It was urged upon me by Mr Mandy that an appropriate disposition would be imprisonment equal to the time you have already served and a community corrections order.  The prosecution took no issue with the possibility of a community corrections order, but Ms McDougall, for the prosecution, submitted that the length of time served was inadequate, and I agree with that.

23You have been assessed as suitable for a community corrections order with various conditions, including treatment for alcohol abuse and for your mental health condition.  Clearly they both warrant expert attention and that will not be forthcoming in prison.

24You have already served 195 days, which is about six and a half months. 

25Charge 2, the charge for sexual penetration, calls for a longer sentence than that, as does arguably Charge 1, the charge of indecent assault.  In this case they are instances of offending at the lower end of the range, as Mr Mandy submitted, and Ms McDougall did not seek to persuade me otherwise, but they are inherently serious charges for which lengthy maximum prison terms are provided.  Those matters provide clear justification for a prison term longer than the time you have already served, but not greatly so.

26I sentence you as follows:

27On Charge 1 on the trial indictment, committing an indecent act with a child under 16, eight months' imprisonment.

28On Charge 2 on the trial indictment, sexual penetration of a child under 16 when she was in your care, ten months.

29On Charge 1 on the plea indictment, four months.

30On Charge 2 on the plea indictment, four months also.

31On the summary charge of failing to answer bail, four months.

32All sentences are to be served concurrently with each other to take account of the fact that they were all committed on the same occasion within a short period of time and to take account of the need for proportionality and totality.

33I will impose a community corrections order which will apply to Charges 1 and 2 on the trial indictment.  It will begin upon your release and will last for two years.  You will be under supervision and you must perform 80 hours of unpaid community work within six months.  You must have assessment and treatment for alcohol abuse and assessment and any necessary mental health treatment.  You must also take part in a sex offender program.

34Within two days of your release from custody, you must attend the Lilydale Correction office.  The address for that is No.118 Clark Street, Lilydale.

35It is mandatory that you be placed on the sex offender registry and that you be required to provide your details to the police every year for 15 years from your release.

36The prosecution seeks an order for a forensic sample of saliva to be obtained, under s.464ZF of the Crimes Act.  You have consented to that through your counsel and I make that order.

37I must advise you that the police have the power to use reasonable force to obtain the sample but I trust that will not be necessary.

38As I said earlier, you have been in custody for 195 days, not including today.  That is to be reckoned as already served and I shall have that noted on the court record.

39Is any issue taken with that figure, Mr Mandy?

40MR MANDY:  No, Your Honour.

41HER HONOUR:  Ms McDougall?

42MS McDOUGALL:  No, Your Honour.

43HER HONOUR:  Thank you.  My associate will approach Mr Butler with the forms for him to sign.  Do you want to have a look at them, Mr Mandy?

44MR MANDY:  Thank you.  May I accompany your associate?

45HER HONOUR:  Yes, you may.  Yes, certainly.

46(Community corrections order signed and acknowledged.)

47(Section 464ZF order signed and acknowledged.)

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