R v Butler - [1996] QCA 264

IN THE COURT OF APPEAL [1996] QCA 264

SUPREME COURT OF QUEENSLAND

C.A. No. 196 of 1996

Brisbane

[R. v. Butler]

THE QUEEN
v.
JUSTIN JOHN PETER BUTLER

Applicant

Derrington J
Mackenzie J
White J

Judgment delivered 09/08/1996

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL REFUSED

CATCHWORDS:CRIMINAL LAW - child stealing, deprivation of liberty, indecent dealing and indecent assault with circumstances of aggravation - whether sentence manifestly excessive - sentencing considerations - significance of mental illness on sentence.

Counsel:	Mr JJ Jerrard QC and Mr Cameron for the applicant Ms LJ Clare for the respondent
Solicitors:	Boe & Callaghan for the applicant Director of Public Prosecutions for the respondent

Hearing Date: 1 August 1996

JUDGMENT OF THE COURT
Judgment delivered the 9th day of August 1996

The applicant for leave to appeal against sentence pleaded guilty on ex officio indictment on 19 April 1996 to a number of counts involving an 11 year old girl. The offences occurred on 16/17 October 1995. They were one count of child stealing, two counts of deprivation of liberty, three counts of indecent dealing with a circumstance of aggravation (child under 12 years) and three counts of indecent assault with circumstances of aggravation. The learned sentencing judge remanded the applicant in custody and considered the matter of sentence. On 3 May 1996 he imposed a sentence of 6 years' imprisonment for child stealing, 4 years' imprisonment on each of the counts of deprivation of liberty, three years on two of the counts of indecent dealing and four years on the third such count and eight years in respect of each of the counts of indecent assault. The sentences were ordered to be served concurrently. His Honour recommended that the applicant be considered eligible for release on parole at the expiration of three years.

There were three grounds of appeal but the first two were abandoned just before the hearing of the appeal and it is unnecessary to mention them further. The remaining ground is that the sentences imposed, particularly those of eight years for the indecent dealing offences in counts 6, 7 and 8, are manifestly excessive. Mr Jerrard QC who appeared for the applicant submitted that an appropriate head sentence was one of six years with a recommendation for release on parole after serving two.

The applicant was aged just 20 years last October when the offences were committed. He had no prior criminal history. He lived at home with his parents and invalid sister and had another sister who lived away from home. He had been a university student, but deferred his course in 1994 for 18 months. He was the manager of junior volleyball at Y-West Centre, Jindalee at the relevant time and was the complainant's volleyball coach. She was then 11 years old. The applicant abducted her from the Centre and made her a prisoner in his home where he sexually abused her. The child was rescued by police some 20 hours later and was interviewed at some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Butler

Details

AGLC: R v Butler [1996] QCA 264
Case: [1996] QCA 264
Decision Date: 9/08/1996

CaseChat Overview and Summary

In the Court of Appeal, the applicant, Justin John Peter Butler, sought leave to appeal against his sentences which had been imposed following his conviction on multiple charges including child stealing, deprivation of liberty, indecent dealing, and indecent assault, all involving an 11-year-old girl. The central legal issue was whether the sentences imposed were manifestly excessive, particularly given the applicant's mental health status at the time of the offences. The applicant argued that his mental illness should have resulted in a lesser sentence and a shorter non-parole period.

The Court of Appeal examined the psychiatric evidence and the sentencing judge's considerations. The applicant had a history of depression and had been sexually abused as a child. He had ingested marijuana prior to the offences, which the psychiatrists suggested may have impaired his judgment and triggered latent paedophilic impulses. The sentencing judge found that while the applicant suffered from mental illness, it was not the predominant cause of his criminal conduct. The offences were premeditated, and the judge considered the need for a heavy deterrent penalty to protect children and to provide retribution.

The Court of Appeal held that the sentencing judge had appropriately balanced the objectives of deterrence, rehabilitation, and retribution. The judge had considered the mitigatory factors, including the applicant's age, good character, and mental health, but ultimately concluded that the severity of the offences and the need to protect society warranted the sentences imposed. The Court found no error in the sentencing judge's decision and refused the application for leave to appeal.

Orders