R v Butay
[2001] VSC 417
•2 November 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1425 of 2001
| THE QUEEN |
| v |
| JESUS BUTAY |
---
JUDGE: | Flatman J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2001 | |
DATE OF SENTENCE: | 2 November 2001 | |
CASE MAY BE CITED AS: | R v Butay | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 417 | Revised 6 February 2002 |
---
Criminal Law – Sentence – Manslaughter - Provocation
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr John Dickson QC Mr Kevin Armstrong | Kay Robertson Solicitor for Public Prosecutions |
| For the Accused | Mr Michael Bourke | Victoria Legal Aid |
HIS HONOUR:
Jesus Butay, you are presented in this Court on a count that at Werribee, in the State of Victoria, on 23 June 2000, you murdered your wife, Ruth Butay.
The jury found you not guilty of that charge, but guilty of the alternative charge of manslaughter. Manslaughter was put to the jury as being murder reduced to manslaughter by way of provocation. In this case, the provocation was said to be verbal taunts and humiliations made to you by your wife at the time of the break up of your marriage. I consider that it would be reasonable to interpret the verdict as a finding by the jury that whilst you intended to kill your wife, there was the reasonable possibility that the provocative words were spoken and the fact that you acted under provocation as it is understood by the law could not be excluded.
The circumstances surrounding the commission of this crime have been canvassed in the trial, but it is important to refer to them so that the full context in which this crime took place can be properly understood. You married Ruth Amores in February 1989 in Bankstown, New South Wales. In 1991, you both bought the house in Oriel Drive, Werribee, where you lived until June 2000. By June of that year, your marriage was in difficulties. Your wife had left the home on 12 June 2000 and lived for a week with a Mrs Conarty. Your wife left a note, "I have done everything I can but the marriage is over". Later, at a meeting with your relative, Gil Tabios, she again made it clear that the marriage was at an end. All of the evidence would suggest that she had clearly decided to leave you, but that she wanted the separation to be as amicable as possible.
For your part, you refused to accept that state of affairs. Although on the face of it you assisted in preparing the house for sale, you hoped to get back with your wife. You were concerned that there may be someone else in her life and you sought to enlist the help of neighbours, Mr and Mrs Awwad, to watch your wife and keep a list of her comings and goings to and from the house at Oriel Drive.
On 23 June 2000, Ruth organised a meeting between you and Scott Stevenson. This meeting was said to be the catalyst for your ultimate attack upon your wife. The Crown put it that at the meeting with Mr Stevenson he let it slip that he and Ruth were going away together for the weekend, and that led to your realisation that your wife must have been unfaithful. The Crown put it that you then went home with the anger building up inside you, intending to get back at her.
The Defence, on the other hand, argued that Scott Stevenson lied to you about having sex with your wife and must have misled you about the true state of affairs concerning the weekend as well. The Defence said you went home to your wife and then she taunted you about her affair with Scott Stevenson. You then realised that Stevenson had lied to you. It was put that the fact that Stevenson had lied was humiliating because you had in fact been seeking his help in relation to your marital difficulties.
Given the way each of the cases was put to the jury and the jury verdict, I think it follows that the jury could not exclude beyond reasonable doubt the defence version of the events that took place on that night. In any case, whatever version is accepted, it would seem clear, that after you went home on that evening, something triggered you to attack and kill your wife, Ruth.
You gave evidence that you went home and begged Ruth not to leave, upon which you were subjected to a litany of verbal abuse and taunts. Whilst I will not reproduce all that you say was said they included such things as being told that you were no better than dirt. You said your wife told you that Scott Stevenson was her lover and that he was much better, "meatier" than you. She said that you were a "dickhead" and that you had better "cut off your dick". She said she "can now fuck around because she won't get pregnant". She also pushed you in the face. She was laughing and yelling. You found this very insulting and you said that you experienced “something like hot and cold” over your body, then a “loud pop” in your head and your ears filled with water. They would not “clear out” and that you were “drowning”.
The effect of your evidence was that you lost control and that you had no recollection of what you then did to your wife until you found your wife on the floor. You said this: "I just can't believe what has happened to her, and I said, 'Ruth, what has happened, please?' I said, 'Ruth' – I told her, I said, 'God, please help me. I don't – I don't know what to do' and I asked her again, 'Please, Ruth, what happened? Answer me', and I panic even more." That was your evidence of recollection and again you have no memory of what happened thereafter until you met Mr Tabios in a police interview room after midnight on the following night.
There are, however, further objective facts that assist us to understand the context of this crime. When the police gained entry to the house the following afternoon, 24 June 2000, they found Ruth Butay lying between the bed and walk‑in wardrobe of her bedroom. There were two towels covering her head. They were stained in blood and there was an indentation in one of the towels. She was transferred to the Coronial Centre at Southbank in order for a pathologist's investigation to take place.
The pathologist, Dr Bourke, conducted an autopsy on Ruth Butay and found that the cause of Ruth Butay’s death was head injuries. There were severe lacerating injuries to the back of the head, with fragmentation fractures of the underlying skull and extrusion of brain tissue. It was Dr Burke’s opinion that these injuries would be consistent with having been caused by an implement such as a hammer, whilst the deceased was face down on the ground. Further he stated that there were no signs of any offensive or defensive injuries. The injuries were consistent with being caused by a half kilo hammer which was found in the laundry of the house with Ruth Butay's blood on it.
An analysis of the objective facts indicates that Ruth Butay was attacked in circumstances where she was in no position to ward off any of the blows. She was struck savagely at least five times and was vulnerable and defenceless during this attack. You were armed with a hammer and at least part of this attack took place while Ruth Butay was lying face down on the floor. Because you are unable to remember these events, we do not know when you took possession of the hammer or why you found it necessary to arm yourself with such a weapon. Similarly, because you are unable to remember, we do not know why you covered her head with two towels and why there was an indentation in one of those towels. Whether that was done to prevent blood spatter or so that you could avoid looking at your wife whilst you administered the blows to her, or for some other reason, we will never know.
Further evidence was available in the form of a series of phone calls made by you to various people later that night and in the early hours of 24 June 2000. You rang a Mrs Magnayon that night at approximately 10 p.m.. You told her that you were separating, that it was Ruth's idea and she was firm in her intention to separate. You rang a Julietta Bituin at about 10.30p.m. that evening, but she would not take you call.
Possibly the most significant call was one that you made at about a quarter to midnight on that night to your mother‑in‑law, Erlinda Domingo Amores. This conversation went on for about an hour. Just before you hung up you said, "Ruth just can't leave me. Ruth is my treasure and not even you as a parent can get Ruth back from me." You said you loved her.
You rang Eunice Chan-Healy at about 12.30 a.m. on the 24th June and said “Scott says he’s going to kill me”. A further phone call took place at around 4.30a.m. to 5.30 a.m. on the morning of 24 June to Rosatrella Arcaya. In this phone call, you asked her to list down the names of Scott, Steven and Eunice and said that they were the ones who were responsible for everything. You said they had taken Ruth away from you and that you were already separated.
The following evening of 24 June 2000, at about 11.30 p.m., you were apprehended by police on the Westgate Bridge. At that time you showed some appreciation of what you had done because in the course of a garbled conversation with a police officer you said, "Can you do me a favour, can you please shoot me. I just want to rest forever. I'm a very bad person."
In simple terms, the objective evidence discloses that you killed your wife by assaulting her with a hammer and you left her in the locked house. You then consumed a significant quantity of alcohol and telephoned various people anguishing about the fact that your wife was leaving you.
Turning to your individual circumstances , you are presently 46 years of age and you have no prior convictions or court appearances. You have a mother still living in the Philippines. You also have a brother in Hawaii and a sister in Los Angeles both of whom have come to Australia to give you support. You have been educated in the Philippines and obtained a diploma in biology. You worked initially for several years on your fathers farm and as a clerk with the Bureau of Highways. You followed Ruth Butay to Australia in 1988. You had done a computer course in the Philippines and you obtained employment with Card Link Services. I accept that you have a good work record. You have suffered from an anxiety disorder for which you were receiving treatment.
Six factors were put forward as matters that I ought to take into account in arriving at an appropriate sentence. (1) It was put as a mitigating factor that you were suffering remorse for what has happened. (2) You were being treated for a psychological state of depression at the time of the offence. (3) You suffered from isolation in that people were not prepared to support you while you were going through your marriage breakup. (4) You are suffering depression and have been treated with anti depressant medication. (5) I am told that gaol will be a greater hardship for you than most people because of your lack of support. (6) You have no prior convictions.
Whilst some of these propositions are matters that I should take into account I would make the following comments.
While I have no doubt that you feel very sorry for your predicament, I have difficulty finding expressions of remorse from the surrounding circumstances. Even accepting that you have no recollection of the attack you made against your wife you say you did become aware at some stage that she was seriously hurt. You did nothing to assist the wife you say you loved after you had come to your senses. Similarly, your comments to people on the telephone, after your wife’s death, and in particular those to your mother-in-law, Mrs Amores, do not speak of remorse. It is said that you were not functioning properly and that I should disregard those conversations . Remorse is a difficult emotion to quantify precisely and I do note that you were on the West Gate Bridge saying “Shoot me. I am a bad man.” I am prepared to factor into my sentencing considerations the fact that you are sorry that your wife is dead but in the end where the loss of life is involved it could never be a major sentencing factor.
I accept that you were suffering from an anxiety state at the time of the offence and that you have been treated for depression in gaol. I have difficulty, however, with the proposition that you were isolated and somehow let down by others. Far from showing that friends and relatives failed to give you support the evidence suggests that you were treated very kindly. I note that Mr and Mrs Awwad and others listened to your troubles. You stayed with the Awwads on the night of the 13th June 2000 and Mrs Awwad’s brother stayed with you the next night. It was Mr Awwad who took you to the Doctor. It was your wife who rang Gil Tabios and asked him to help you. Mr Tabios gave you advice and you stayed with him for a time. Even Scott Stevenson, despite the trenchant criticism directed at him during the course of the trial, was concerned for your welfare. The truth was your wife had determined to leave you and you were not prepared to accept that.
As to your alleged lack of support in gaol, you have been in Australia since 1988 and you have a number of friends and relatives in this country. Your circumstances do not appear to distinguish you significantly from other persons who finds themselves in similar situations. Nonetheless I have read and noted the very sympathetic report from Sister O’Shannessy.
Your individual circumstances considered the fact remains that the felonious taking of a human life is recognised as one of the most dreadful crimes on the criminal calendar. The Victim Impact Statements bear testimony to the human cost of your criminality. It is clear that Ruth Butay was a much loved daughter and sister. She was described by her sister as a person who was respectful of others. She was a caring, considerate and courteous person. Her mother also described her as a respectful well-spoken and caring young woman. Indeed, save for your evidence of the provocative words that would appear to be borne out by the evidence in the trial. She was highly regarded by her workmates. I note the evidence of Mr Tabios that not only had Ruth Butay asked Mr Tabios to help you, she was embracing you at the time of the discussion relating to your marital break-up.
The Victim Impact Statements show that your wife’s family have found the trial an ordeal. They were shocked at the savagery of your attack on their daughter and sister, Ruth. They were also hurt by the words you attributed to your wife prior to your attack on her. From their perspective just as Ruth was unable to defend herself from your violent and savage attack with the hammer, equally she was unable to defend herself from your allegations as to her use of provocative and abusive words.
I should say this in passing. The criminal justice system has to accommodate many competing interests and I would emphasise to Ruth Butay’s family and friends, as I indicated in the course of the plea, the jury verdict means no more than a finding that the jury could not exclude, beyond reasonable doubt, the possibility of those words being said.
The fact remains in cutting short your wife’s life you have caused irreparable distress to your wife’s family. Ruth Butay’s death, and the manner in which it occurred is something from which the Amores family will never recover.
I turn now to an analysis of the facts and the sentencing considerations.
This is a case of voluntary manslaughter where murder is reduced to manslaughter by provocation. It is more serious than other forms of manslaughter because it is accompanied by an intention to kill or do really serious physical injury. In this case there can be no doubt that you intended to kill your wife.
The degree of provocation was not great. There was in my view, assuming that the provocative words were said, a real question as to whether it was open for a jury to find that an ordinary man in the same circumstances as you were in might lose self-control. The allegation really came down to the proposition that you lost self-control because your wife used insulting and abusive words and you felt you had been lied to. The only physical act alleged by you was that you said your wife pushed you on the forehead. Your Counsel encouraged the jury to accept the possibility of her using such language by arguing that you had refused to accept that your wife was leaving you and that you drove her to lose her patience and speak to you in the way she did. Your Counsel put it that these things that you attributed to her could be just the sort of things that a woman in her situation would say.
The degree of violence involved was excessive. The attack on your wife was brutal. You had a weapon in the form of a hammer weighing half a kilogram. She must have been taken by surprise as there was no sign of a struggle and she did not offer any resistance. At least part of this very savage attack took place while she was laying defenceless face down on the floor. The brutality of the attack was reflected by the extraordinary severity of her head injuries.
Whilst the law allows for human frailty in the concept of murder reduced to manslaughter by provocation, it does not follow that such occasions do not constitute serious crimes or that substantial sentences should not be imposed on the perpetrator. As Justice Vincent said earlier this year “this community has a powerful commitment to the sanctity and inviolability of the life of everyone who dwells within it”[1] He also said in the same case “It is the common experience of Judges in the Criminal Division of this court that extreme aggression, in the context of personal relationships, is almost exclusively employed by males and directed against victims usually but not always their wives or children, who possess little capacity to defend or otherwise protect themselves”. That was a provocation manslaughter case and the sentiments are entirely apposite to this case.
[1]Francesco Carmelo Farfalla [2001] VSC 99.
The courts through the sentences they impose must denounce this kind of conduct and give practical effect to the stated values of society which they represent. Whilst the principle of general deterrence should be regarded as having less significance where the jury has not excluded the possibility that you have acted under provocation it should nevertheless be taken into account in the determination of an appropriate sentence. This is particularly so where the violence has occurred against the background of a husband who refused to accept that his wife had the right to make her own choice.
In the end we are faced with the fact that a very decent young woman has had her life cruelly cut short as a result of a brutal attack. There is no doubt that it is a crime of great gravity.
Balancing the factors as well as I can and being conscious of the principles of law applicable in the circumstances, ultimately I have decided that the appropriate sentence to be imposed upon you is one of imprisonment for eight years. I fix a non parole period of six years.
I declare that the period of 495 days that you have undergone as pre-sentence detention should be reckoned as having been served under the sentence already imposed.
I direct that this declaration and its details be entered in the records of the court.
Pursuant to s.78(1) of the Confiscation Act 1997, I order the forfeiture of the property contained in the schedule, namely a “Stanley” claw hammer, and I direct that it be held in safe custody until 28 days from this date or the conclusion of any appeal procedures.
I also make an order for the taking of an intimate sample pursuant to s.464ZF of the Crimes Act 1958. I do so because of the seriousness of this offence and that it is in the public interest. I am also required to inform you that the police may use reasonable force to enable that procedure to be conducted.
0