Director of Public Prosecutions v Butterfield

[2014] VCC 1663

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00554

DIRECTOR OF PUBLIC PROSECUTIONS

v

IVAN BUTTERFIELD

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2014
DATE OF SENTENCE:	2 October 2014
CASE MAY BE CITED AS:	DPP v Butterfield
MEDIUM NEUTRAL CITATION:	[2014] VCC 1663

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. O'Halloran	Office of Public Prosecutions
For the Offender	Mr J. Fitzgerald	Victoria Legal Aid

HIS HONOUR: 

1Ivan Butterfield, on 4 September 2012, police came to your house in Frankston.  It appeared that just prior you had been looking at your computer.  On questioning you told police that there were things on your computer that you should not have.  Your house was searched, and the police located various storage and hard drive equipment.  On these computers, and storage equipment and hard drives, there was a vast number of images and movies.  One figure puts the images on one of the computers at 1.2 million images and over 5000 movies.  In the end the whole soul-destroying process of assessing this material fell to the informant and it took well over a week to perform that task.  In the end the prosecution say the police identified 37,091 images and 553 movies all containing child pornography.

2The majority of the images were of males, pre-pubescent and under 12.  Your collection of child pornography must be one of the more gargantuan ever discovered.  The content or nature of the material was vile in the extreme.  The suffering of the children who were forced to endure rape, exploitation and depravity is hard to describe and impossible for a right minded person to fathom.  I, with the assistance of the informant, viewed a small - a very small sample of the material, which I add included depraved stories of violent rape and abduction of very young children.  The material was disturbing, though on the classification system much of it was in category 1, there was nonetheless significant amounts of material in the higher categories.  All the material was plainly criminal.  The range of ages was from very young, pre-school children, up to those in their teens with the majority pre-pubescent.  Obviously there are children from third world countries who have been exploited because of their situation.  This international crime demeans us all.

3Your efforts to obtain the images involved engaging in chat lines or chat groups that gave you information and access to this material not easily accessible on the internet.  You did not possess this material for the purposes of on-sharing and trading in child pornography.  You were simply a customer.  There was, in your instance, no breach of trust and I have taken these matters into account.  But you Mr Butterfield continued to routinely collect, view and catalogue this material over many years.

4I have often said when sentencing an offender that some aspect of what they did reveals the dark side of their character.  With you and with the extent and seriousness of your involvement in this industry of sexual abuse of children, it is not merely a dark side of your character.  Your character and your conduct is wholly depraved.  The authorities in relation to child pornography crimes emphasise a need for denunciation and deterrence.  Your crime of possessing child pornography fuels and encourages this criminal industry.  On any analysis, yours is a grave example of the crime of possession of child pornography, and you have done this for a long period of time.  That is collecting more and more images and films. 

5Though your crime is possession of the material on the day the police arrested you, I cannot ignore that you have been immersed in the industry of child exploitation and sexual abuse for most of your adult life.  I do take into account what you said in your record of interview, that you have not downloaded child pornography for over - for approximately five years, and only view it in recent times occasionally or from time to time.  I note that you were viewing child pornography so it is said on the day that the police arrived.

6Because of the extent, the nature, the volume and the age of the victims, I consider this to be a serious example of this crime.  Worse crimes or worse examples can be imagined, but yours is a very grave example and your moral culpability is very high.  There is little else that can be raised or identified setting out what you have done in your life.  You have had a limited work history and no employment since the late 1990s.  That is, approximately the last 15 or 20 years.

7You live alone and have no family support or engagement.  You left school at Year 8 and have had some labouring jobs from time to time since then.  You thought you had an acquired brain injury due to a car accident when you were about four years old.  Fortunately the testing reveals that you have no acquired brain injury or any abnormalities.  You are of average to low average intelligence and in general functioning.  You remain of the view that you have an acquired brain injury but the expert evidence is that you do not.

8There are two important matters in your background that are relevant to sentencing.  First is that you have a highly relevant prior - or have highly relevant prior convictions for indecent assault.  It was at a time - and it seems the only time in your life where you were in a relationship and your partner had two children that you indecently assaulted.

9The convictions were in 1989 and resulted in a suspended gaol term and a community-based order from a magistrate.  You have had no convictions since.  Plainly this sentencing process then in 1989 did not deter you from engaging in the form of child sexual abuse involved in the possession of child pornography.  However, you have not directly sexually abused a child since 1988. 

10The prior matters elevate your risk of re-offending and increase the need for protection of the community and the need for deterrence to you.  It makes your prospects of complete reform problematic.  That said, all these matters just mentioned are not overemphasised as it is proper to recognise that these prior crimes were over 25 years ago. 

11The other important factor in your personal circumstances is your poor cardiac health.  In early January of 2014, you suffered a significant coronary infarction.  You were hospitalised for about two weeks.  You had a coronary stent implanted.  More significantly, you also have an implanted automatic defibrillator which was inserted in, it seems, August 2014.  Ill-heath has long been recognised as a relevant sentencing consideration.  It is not merely a simple equation of ill-health leading to a lower sentence. 

12Generally, as set out in the Victorian sentencing manual, generally sentences proceed on the basis that it is prison authorities' responsibility to provide adequate and proper medical treatment for the sick and adequate and proper facilities for those with disabilities.  That said, as was said by Chief Justice King in South Australia in the important case in this area of Smith in 1987, generally speaking ill-health will be a factor tending to mitigate punishment only when it appears that imprisonment would be a greater burden on the offender by reason of his state of health, or when there is a serious risk imprisonment having a gravely adverse effect on the offender's health.  In your case, the report of Peninsula health says the following;

"In general it is hard to predict exactly what effect imprisonment will have on Mr Butterfield's health given his borderline cardiac function and the added stress he will no doubt be under when imprisoned.  However, as a general rule, patients with chronic, stable heart failure or heart disease would be able to manage in a prison situation as long as they are able to follow their dietary and exercise regime and have appropriate outpatient follow up."

13Smith, the case I have referred to also sets out that imprisonment will be a greater burden on the offender because of the state of his or her health.  Consideration of that is directed towards whether the offenders' ill health will make imprisonment a greater burden, not whether imprisonment will make the offender's ill-health a greater burden.

14In prison, you will have significantly more people it seems to me to watch over you and attend speedily to any emergencies than may be the case in your current circumstances.  An appropriate diet can be managed and indeed perhaps compelled upon you within the prison.  The biggest risk factor for you comes from what I was told by your counsel that you continue smoking cigarettes.  Hopefully this can end in prison.  However, it is without doubt that prison is stressful and you will no doubt be anxious in prison.  I consider prison will be more burdensome from you because of your cardiac ill-heath and accordingly your sentence will be mitigated because of that factor.

15Your plea of guilty, your speedy cooperation and your frank confession to the police and your acceptance of your criminality all operated significantly in your favour.  Your plea saved significant resources and no doubt a difficult experience for jurors if you had contested the charges.  Your counsel urged upon me to take up what is a new sentencing regime of a gaol term which can be now more lengthy combined with a community corrections order.  There is much to recommend this course.  I had you assessed and you are suitable and of particular value is that you will be able to be subject to what is known as the sex offenders' course while you are in the community.  Also should you breach your community corrections order, you will be returned to be re-sentenced by me.

16A community corrections order can be onerous punishment as well as a tool to facilitate your reform.  In your case, because of your cardiac health at the moment, it is not recommended that you do any unpaid community work.  It is difficult to know what the future holds.  However, I accept the recommendation of the community corrections officer that you not undertake unpaid community work, notwithstanding it will be some time before you get to be on the community corrections order.

17However, as I have outlined, the programmes that facilitate can be combined with terms of imprisonment longer than the previous existing regime of just three months.  I am sure that the targeted programs, in particular sex offender programs together with the punishment and deterrence of gaol will give the community a sense that just and appropriate sentencing options are there to be utilised and are in my view appropriate in your circumstances.

18Because of your prior convictions, you fall to be sentenced as a serious sexual offender.  Thus I am to regard protection of the community as the primary sentencing purpose and I do so.  In this instance in my view, protection of the community is by disabling you from being in the community by a term of imprisonment.  However, also protection of the community is enhanced if you do have treatment and supervision once released.  But also of great weight is deterrence to you and to anyone else who is contemplating entering this abhorrent world of child pornography.  The viewing of gross sexual abuse of a child who no doubt left with painful memories and debilitating psychiatric problems, if that is undertaken by anyone, they should be assured that they will be caught and stern punishment involving incarceration awaits them.

19Because of the flexible sentencing regime I now have available, I do not in my view need to fix a lengthy period of parole and thus the period of potential parole in your case is relatively short, but I explained the reasons for that.

20Whether you are granted parole is for others but once you are on parole, or your head sentence is completed, you will be subject to ongoing supervision rehabilitative programs on a lengthy community corrections order.  Doing the best I can and I impose the following sentences, some involve you consenting to a regime of community corrections order.

21Once we get to that point and you do consent I will explain to you each and every - or once we get to that point I will explain to you each of the conditions that apply to the community corrections order and if you consent to it then you sign a document.  There are other documents that need to be attended to as well.  But turning to the sentence itself, could you please stand Mr Butterfield?

22For committing the crime of possession of child pornography, I sentence you to two imprisonment and I fix a minimum non-parole period of 18 months.  I also impose a two year community corrections order, which will have a variety of programs in addition to the mandatory conditions.  Pursuant to s.48(d3), subparagraph F, you are to engage in offender behaviour programs.  I expect that will be - you will undertake the specialist offender assessment and treatment service, formerly the sex offender's program.

23You are also to be under supervision pursuant to s.48(E), I note in the recommendation of the Community Corrections staff that you will be monitored and managed by an experienced case manager.  I hope that is the case throughout.  The other recommendation for medical assessment and treatment I decline to require or set as a condition.

24There are other matters that are mandatory and they will be read to you once the order is produced.  That community corrections order of course is with conviction.  There are other orders that I must make first.  Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of four years' with a minimum period of three.  Next, you are because of the crime that you have committed but also because of your prior history required to be registered under the Sex Offenders' Registration Act in this state.  That is mandatory and the period of time that you must remain registered is also mandatory and that is for life.

25What occurs now is that you are given a document that sets out in broad terms your responsibilities and requirements under the Sex Offenders' Registration Act.  They are requirements or responsibilities that are quite onerous and there are very significant consequences if you do not abide by it.  You must read that document carefully and you must abide by all the requirements once you are released from prison.  What occurs here is that you are given a document.  I sign a document saying I have given it to you, and you sign a document saying you have got it.  I will then send the appropriate documentation to the Chief Commissioner of police who will then, under the Act, be the one that has to establish a regime where police officers monitor you on the sex offenders' registration.

26The other provision as I have indicated that you are a serious sexual offender and I declare that you are a serious sexual offender, because you have been convicted of two or more sexual offences, this being the third, for which there has been a sentence of a term of imprisonment and as a consequence you are, as I have said, a serious sexual offender and I enter that declaration into the records of the court.  Prosecution have sought various orders, the first of which is a forensic sample.  The application is that you provide a forensic sample, usually a scraping from your mouth so that sufficient sample can be obtained and your DNA extracted and put on a database.  I have considered that application and I intend to grant it.  The reasons for that are the seriousness of the offending.  Your prior convictions and that it is in the interests of justice that your DNA is kept on a database.

27There is also an application for disposal pursuant to s.77 of the Confiscation Act and I intend to make that order as well. Those documents need to be prepared and signed. You can be seated while that is done.

28MR FITZGERALD:  Your Honour, there is a matter I raise.  It won't be of substance in respect of the sentence Your Honour has imposed and it may arise from a misunderstanding based on something that I put to Your Honour.  That is why I raise it.

29HIS HONOUR:  Right.

30MR FITZGERALD:  Your Honour, in referring to the prior matters that we talked about.  The woman with whom my client lived being in a relationship with that woman, he was not ‑ ‑ ‑ 

31HIS HONOUR:  Right.

32MR FITZGERALD:  They were living together but they weren't in a relationship, Your Honour, so ‑ ‑ ‑ 

33HIS HONOUR:  It was just living in a house together, but not in any relationship.

34MR FITZGERALD:  Not in any intimate relationship, Your Honour.

35HIS HONOUR:  All right, I understand.  I do not think - just bear with me while I consider that point, and I need - because of recent experience to make it clear that I am considering the point.  I am not going to walk off the Bench to simply to do it, but I am doing it now and then I will come back to it.

36MR FITZGERALD:  Yes, Your Honour, thank you.

37HIS HONOUR:  If I could just have those other orders?  Mr Butterfield you can remain seated while I inform you that having made the order that you provide a forensic sample to the authorities, I must make it clear to you at the time of the authorities make the request of you for the scraping of your mouth that if you do not consent or cooperate with it, the authorities are authorised to use reasonable force to enable the forensic procedure to be conducted.  The way through it of course is to cooperate.

38Two documents are about to be provided to you Mr Butterfield.  The first is that relating to the sex offenders' registration regulations indicating as I have said that I have given you a document setting out your obligations.  You sign the document saying you have got it.  But it is the content of the document that counts.  The next document that you will be provided is a copy of the community corrections order.  The order will last two years, that will commence upon the completion of your imprisonment.

39Once you have completed the term of imprisonment, then you must attend at the Frankston Community Correctional service in Frankston within two clear working days after the commencement of this order.  The mandatory terms that apply to all community corrections order are that you must not commit any offence for which you have been imprisoned during the time that that order is enforced.  You should consider almost every offence you can imagine or think of is punishable by imprisonment even if you would not have got that from the magistrate.  It is the fact that you committed an offence that would breach this order.  The way forward is do not commit any offence during the course of this order.  Of course, do not commit any further offence for the rest of your life.  That will keep you out of trouble.  But if you do commit an offence, it will breach this.  You will come back before me.

40You must comply with any obligations or requirements under the sentencing regulations.  I am told that that principally relates to you having your photograph taken and kept so they know who you are.  You must report to and receive visits from the office of corrections.  You must let community corrections officers know within two clear working days if you change your address or job.  You must not leave Victoria without getting permission from the Office of Corrections and you must avail lawful instructions and directions from there.

41In addition to that, the mandatory terms - the terms that relate to you specifically are that you must be under the supervision of the community corrections officer for a period of two years.  That means you have just got to keep in touch with them.  Be supervised with them, turn up every time they say you are to turn up.

42Also you must undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager.  If you consent to that order being made then sign the document.  Mr Fitzgerald, if you would not mind - or your instructor would not mind going to the back of the court for those.

43MR FITZGERALD:  Thank you, Your Honour.  May I accompany my instructor.

44HIS HONOUR:  Yes.

45First document that I have received back is an acknowledgement form in which your signature appears indicating that you being a registrable offender within the Sex Offenders Registration Act acknowledged having received a notification reporting obligations that will be forwarded to the chief commissioner of police. The other document is the signed community corrections order. Just above your signature is the words, "I understand the effect and conditions of this order and consent to it being made." You will be reminded of that if you breach this Mr Butterfield.

46That being signed, I have considered Mr Fitzgerald's very appropriate reference to one of the parts of the narrative that I had in my sentence relating to the prior matter where I said that this is the only time in his life where he was in a relationship and the partner had two children.  It has been pointed out that he was not in a relationship but living in a house with a woman who had two children, and those children were the ones that he indecently assaulted.  It does not alter any of the aspects in relation to those prior offences that I took into account, in particular I re-emphasise what I said at the end that all the matters mentioned in respect of the prior matters are not over-emphasised as it is proper to recognise the prior crimes were 25 years ago.

47Mr Butterfield, you will now be taken by the prison authorities down to the cells and the prison.  Perhaps unlike other judicial officers who spend a bit of time sometimes telling the prison authorities of all the concerns relating to taking someone into custody, I have never been sure what power I had to raise such matters or compel anyone to do anything.

48But in your case, I point out to the officer that is here that Mr Butterfield has reports that I have seen of a recent heart attack including having a defibrillator inserted in his chest to assist.  He has poor cardiac health and the urgency must be plain to everyone that I will emphasise he just has to be seen by a doctor as soon as possible to ensure that he has the appropriate medication.

49One of the drugs that I see that he has; a beta-blocker.  There are grave risks that arise if that drug is stopped without it being slowly taken from that regime.  Is that understood?

50ACCUSED:  Yes, Your Honour.

51HIS HONOUR:  Do you have that medication with you?

52ACCUSED:  Yes, it's in me bag, Your Honour. 

53HIS HONOUR:  Whether that's - whether what happens with that medication, I don't know, but there is one tablet that I think he has got for my own lay view of things that if he does not get it, trouble could arise.

54MR O'HALLORAN:  It'll be seen to, Your Honour.

55HIS HONOUR:  Thank you very much.  Is there anything else required?

56COUNSEL:  No, Your Honour.  Thank you.

57HIS HONOUR:  I thank counsel for their very considerable assistance and direction towards the new sentencing regimes.  I thank the informant for his assistance in respect of this difficult matter.  Mr Butterfield has to leave.  You go with the prison officer now.  Apologies, there are failings on my part to remember the protocols.

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