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 length following her rescue. The applicant agreed with his treating psychiatrist, Dr Ian Curtis, that the complainant was a fair historian of the events that had occurred. The sentence was a contested one being confined chiefly to the applicant's mental status at the time when he committed the offences, a consideration of whether those offences were premeditated and if he had demonstrated remorse.

Two weeks before the abduction the applicant had spoken to the complainant at the Centre privately. He had singled her out to complete a survey/assessment with him in respect of the Centre. Whilst doing so the applicant told the complainant that when he was 15 he and a friend had won $5,000 by gambling. They had buried the money to keep it a secret but the applicant was now about to dig it up because his friend was involved in drugs and the applicant was concerned that he would use the money on drugs. He offered to pay the complainant $1,000 to hold the money for him for a week after it was recovered. The applicant found this "secret" quite exciting and confided the details to her two best friends at school.

On 16 October the complainant was at the Youth Centre at Jindalee with her family. The applicant told her that he would meet her in the carpark at a given time. He told the interviewing police that he had smoked a considerable amount of marijuana by then. The complainant left her mother, taking with her a backpack to carry the money and her mother's car keys in order to lock the money in the family car. When she arrived at his car the applicant told her that they would have to drive to get to the money. She got into his car whereupon at knifepoint he bound and gagged her with masking tape and caused her to lie down on the seat. He showed her the knife throughout the journey to his home which was in the suburb of Sherwood some kilometres distant. The applicant was then living in the house alone since his parents had left a short time previously on an interstate driving holiday with his invalid older sister.

When they arrived the car was driven into the garage and the complainant was made to walk inside quickly. The applicant took her to a room in the middle of the house which was his invalid sister's bedroom. On entering the room she saw a rifle beside the bed, nylon rope on the couch, an instamatic polaroid camera and two knives on the desk as well as a television. Those things were there when the police subsequently searched the house. It was possible that one of those knives may have been the knife the applicant had used in the car. The complainant was kept in that room for the 20 hours of her abduction except for brief periods to eat in the kitchen and to use the bathroom. When they arrived in the bedroom the applicant untied the girl's hands and then re-tied her to the bedhead using the nylon rope. He sat silently for some time. The applicant fondled the complainant's vagina by putting his hand inside her shorts. This was the conduct which constituted count four. Whilst her hands were still tied and she was gagged the applicant removed the complainant's clothes and took a series of sexually explicit photographs of her having posed her for those purposes. The photographs included pictures of her genitals. This conduct constituted count five. The applicant told the complainant that he was going to stop her from being a virgin. The applicant gave the complainant the option of having penile sexual intercourse with him or performing oral sex on him and she chose the latter. That act constituted count eight. The applicant photographed her performing this act and that constituted count five. She said that it lasted about two minutes.

The applicant inserted his finger inside the complainant's vagina sufficient to rupture her hymen and bruise the surrounding area. This conduct constituted count six. Subsequently when she went to the toilet the complainant noticed blood on her underwear. At some stage in this course of conduct the applicant untied the complainant and removed her gag. According to the complainant she had been tied up for about three hours in total whilst the applicant said it was an hour. The applicant kissed the complainant's body whilst she was still undressed, as was he, including applying his mouth to her vagina. That conduct constituted count seven on the indictment.

He lay on top of her whilst they were both undressed and moved about on top of her. The applicant said that the complainant did not cry out but had tears in her eyes whilst this conduct was occurring. She became hysterical at one stage during the indecent assaults. After these acts of indecency came to an end the complainant was permitted to dress as did the applicant. She watched television and he inhaled marijuana and offered some to the complainant but she declined. She said that she put a pillow over her face to avoid inhaling the fumes.

At about 9.30pm the applicant took a telephone call in which an enquiry was made about the missing complainant. The applicant told the caller that he knew nothing about her. They spent some hours talking in which the complainant asked the applicant if he intended to kill her and what he might do. In the course of the evening he had threatened to kill himself with the rifle but subsequently told the complainant that it did not work, but seems to have mentioned suicide several times. They spent the night together on the single bed in the applicant's sister's bedroom. The applicant had his arm across the complainant.

The following morning the applicant showered with the girl and washed her hair to remove the masking tape. The applicant admitted to the police that he touched the complainant on the chest and buttocks whilst in the shower and this constituted count nine. In the morning the applicant told the complainant that he would have to tie her up for three hours whilst he attended work at the Y-Centre at Jindalee that afternoon. He added that he expected that the police would be waiting for him.

He said that he would let her go in due course at a shopping centre to give himself time to get away interstate. They saw a report on the morning television news about the search for the complainant and the applicant expressed the view to the complainant that the authorities thought that she was dead.

The police questioned the complainant's school friends that morning and the two children to whom she had spoken about the applicant's hidden money told them of this. The police arrived at the applicant's home just after midday. Before opening the door to them the applicant warned the child to remain in the bedroom. He spoke to the police outside the house and denied any knowledge of the whereabouts of the child. The police mentioned to him the story told by the schoolgirls about the gambling money and he then revealed to them that he had told the complainant an untrue story about the gambling money and denied promising her payment or the mention of drugs. The police searched the house and located the complainant lying on the bed hot and apparently shocked.

As could be expected, the effects on the complainant have been very serious and she has been receiving treatment. Her family, particularly her mother, have suffered greatly as a consequence of this ordeal. Initially the applicant declined to be interviewed on legal advice but then provided formal admissions in a statement to the police. He maintained that the incident was unplanned and said that because prior to the abduction of the child he had ingested a quantity of cannabis he was detached and vague. He commenced treatment with Dr Curtis, a psychiatrist, shortly after his arrest. Dr Curtis provided a report to the Court for the applicant's bail application which was granted. He resided with his parents and continued treatment with Dr Curtis. In due course the Crown sought to have the matter referred to the Mental Health Tribunal for assessment of the applicant's mental status. Reports were prepared for the tribunal by Dr J Redden and Dr P Edwards who had been provided with Dr Curtis' report. The Mental Health Tribunal found that the applicant was not of unsound mind at the time the offences were committed and was fit to plead. The three psychiatrists were cross-examined before the learned sentencing judge.

As we have mentioned a matter in contest on sentence was whether the acts of the applicant were premeditated. The learned sentencing judge concluded from the presence of the knife and masking tape in the car, the various objects in the bedroom and from the prior arrangement made with the complainant that there was a degree of premeditation involved in the offences. This finding was initially a ground of appeal but was abandoned. The learned sentencing judge concluded that the applicant had demonstrated remorse by sparing the child the need for further suffering in a committal hearing and trial by pleading to an ex officio indictment. He referred to the need for a heavy deterrent penalty stressing that the community needed to have confidence that children would be protected through the courts. He also referred to the lasting effects of the applicant's unlawful conduct upon the complainant and considered that the applicant had breached a position of trust.

He noted that on the psychiatric evidence the complainant had an obsessive-compulsive disorder with depression but concluded that his mental illness was not the predominant cause of the offending. The learned sentencing judge noted that the likelihood of re-offending was unknown. He took into account the mitigatory matters of the applicant's previous good character and stable family life.

Mr Jerrard submitted that it was appropriate to sentence on the basis that there was some mental illness present in the applicant at the time of the commission of the offences and because the evidence, particularly that of Dr Curtis, suggested that no lengthy period of imprisonment was necessary to ensure that the applicant would not re-offend, a less onerous non- parole period should have been set. He further submitted that the learned sentencing judge had sentenced the applicant more harshly than would have been the case had the unlawful conduct occurred over many years or many occasions in an indecent dealing case.
The applicant told the psychiatrists that he had a happy
childhood, attended private schools and played sport regularly.
He revealed that he had been sexually abused by a stranger on
his way home from school when he was aged about 10 but had not
mentioned this to his parents. He left school at 18 to attend
the Australian Catholic University where he commenced a Bachelor
of Education. He had had an ambition to be a primary school
teacher. He did not particularly enjoy his studies and had
deferred after eighteen months in the middle of 1994. He
indicated that he felt depressed for some two years and had
thoughts of suicide. Whilst he was at school he had begun going
on camps for disadvantaged children and told the psychiatrists
that that was when memories of his own sexual abuse had re-
surfaced. There was no suggestion that he had engaged in any
inappropriate conduct with these or any other children prior to
the present offences. The applicant had had no prior sexual
relationships. The applicant denied consuming marijuana since
the commission of the offences and tests performed by Dr Curtis
tended to confirm this. He was treated by Dr Curtis with anti-
depressant drugs and in December 1995 whilst living at home on
bail he took an overdose of his prescription medication which
resulted in a week's admission to hospital.
Dr Curtis diagnosed the applicant as suffering from a Major Depression Episode at the time the offences were committed coupled with prolonged adolescent turmoil, acute marijuana intoxication and isolated anti-social and paedophilic conduct. He concluded that the applicant had a grossly immature personality combined with psycho-sexual immaturity and internal homosexual conflict. On 16 April 1996 Dr Curtis reported that there were signs that the applicant was responding to his treatment by the restitution of personality functioning and the lifting of the previous major depression.

Dr Redden found it difficult to assess the applicant's level of insight because she thought there was evidence to suggest that he was not always telling the truth. He told Dr Redden that he had gradually become depressed over approximately two years prior to committing the offences related to recurrence of memories of his sexual abuse. She noted however that he was still seeing friends, participating in competition sport, working and passing most of his subjects during that time. He told her that he thought of suicide. He said that his parents would not have been aware of his depression and since he had not left a note or planned to leave a suicide note that they would have been greatly surprised had he done so. Dr Redden concluded that the applicant's depression was mild and that a diagnosis of dysthymia (mild depression) at the time of the offences was appropriate. She accepted that he may have developed Major Depression since the offences. She noted that it was difficult for her to gain a sense of the applicant's true personality because of his guardedness with her. Dr Redden noted that Dr Edwards had raised the possibility that a depressed frame of mind and marijuana intoxication may well have resulted in the release of latent paedophilic impulses which were then acted upon. The applicant denied such interests to Dr Redden but she thought that his conduct strongly suggested that he may well have such a tendency. Dr Curtis had diagnosed the applicant as suffering from an obsessive/compulsive disorder related particularly to his doing things in numbers and having obsessive doubts about being a homosexual. Dr Redden did not consider such a diagnosis justified since the applicant continued functioning reasonably well. She was of the view that that condition had no relationship to the offences. As to the future, Dr Redden considered that in the short term the applicant was unlikely to commit further offences of this nature but since he had accepted virtually no responsibility for his conduct it was difficult to make any prediction in the long term. She concluded that there was some evidence to suggest that the applicant may be very dangerous.

Dr Edwards agreed that the applicant probably suffered from dysthymia over the two years prior to the offences possibly more severe in the period prior to the offences. He thought that a reactive depression was added after the offences occurred and the applicant may have suffered a Major Depressive Disorder from which he was gradually recovering with treatment. As mentioned,

Dr Edwards thought it likely that the applicant's impulse control was disinhibited by the ingestion of marijuana which impaired his judgment and this together with his depressed frame of mind resulted in the release of latent paedophilic impulses which were acted upon. Dr Edwards concluded that in all probability the applicant did have a mental disease in the form of depression to a moderate degree at the time of the offences.

Reference was made by counsel to the case of Arnold (1991) 56 A Crim R 63 a decision of the Court of Criminal Appeal of Western Australia. In that case the 22 year old respondent to the Attorney-General's appeal against sentence abducted a 7 year old boy from a schoolyard and over a three hour period subjected him to sexual attacks which were described as terrifying, painful and humiliating, including anal penile penetration. The respondent had previously recognised deviant sexual behaviour fantasies in himself and had sought professional advice. He was sentenced to a period of 6 years and 8 months' imprisonment which on appeal was increased to 8 years and 8 months. It was submitted on his behalf that he suffered from psychological disorders which were mitigatory. The medical experts who examined him concluded that he did not demonstrate any psychiatric abnormality but was a psychologically disturbed person. Ipp J referred to Channon v. The Queen (1978) 33 FLR 433 at p.71 where Brennan J (as his Honour then was) observed at pp.436-7

"Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality.

An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or an undetermined period. Abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe. That is not an unusual phenomenon in sentencing, where the court must fashion a sentence which either reconciles or balances the various objectives of sentencing, sometimes giving emphasis to one of the objectives of sentencing, sometimes giving emphasis to another."

At p.347 his Honour said
"The necessary and ultimate justification for criminal

sanctions is the protection of society from conduct which the law proscribes. Punishment is the means by which society marks its disapproval of criminal conduct, by which warning is given of the consequences of crime and by which reform of an offender can sometimes be assisted. Criminal sanctions are purposive, and they are not afflicted judicially except for the purpose of protecting society; nor to an extent beyond what is necessary to achieve that purpose."

Mr Jerrard particularly relied upon the following passage at
pp.439-40
"Mental illness may require treatment, but it does not

merit punishment. Where the abnormality has caused or contributed to crime, however, the protection of society may require the imposition of punishment according to the gravity of the threat which the abnormality poses, and the seriousness of the conduct to which it had contributed."

He also drew the Court's attention to a passage in the decision
of Mooney, (unreported decision of the Court of Criminal Appeal
of Victoria of 21 June 1978) referred to in Arnold. Young CJ
said
"General deterrence should often be given very little

weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establish legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender's responsibility for the offence should be regarded as having been reduced."

Mr Jerrard submitted that deterrence to others was not an appropriate sentencing objective here because according to both Dr Curtis and Dr Edwards the applicant suffered from mental illness at the time when the offences were committed. He submitted that the applicant ought not to be punished for that mental illness by a lengthier than necessary period of detention if there was a clear possibility that he could be rehabilitated in a lesser time than might otherwise be appropriate. He submitted that in well under three years any paedophilia or latent paedophilia could be identified in prison and appropriate treatment be given. The learned sentencing judge had carefully scrutinised the psychiatric evidence and had the advantage of seeing and hearing the psychiatrists give evidence. Whilst two of them concluded that the applicant did suffer from mental illness at the time the offences were committed the nature and quality of that illness had been carefully analysed by them. The applicant knew that what he was doing was wrong. He had voluntarily ingested quantities of marijuana and that together with his depressive state Dr Edwards and Dr Curtis suggested might have caused him to give way to his latent paedophilic impulses. This was a possibility only. It was not incorrect on the part of the learned sentencing judge to conclude that the applicant's mental illness was not the predominant cause of the applicant's criminal activity. The premeditated nature of the offending conduct, the conduct itself and the uncertainty as to the applicant's prospects of rehabilitation dictated that no reduction in his sentence and recommendation for parole should be made from that which would otherwise be appropriate. Certainly there is nothing to suggest that any failure to do so by the learned sentencing judged resulted in a sentence and recommendation which was manifestly excessive.

Mr Jerrard's second submission was that compared with indecent dealing cases the sentence imposed was manifestly excessive. Those cases do not seem to me to be of a great deal of assistance. No matter how disturbing and distressing for the complainants, they tend to take place in either a familiar environment or have no element of taking the child away from his or her routine, family and friends. Here the child was abducted from her family, bound and gagged and subjected to threats with the knife all of which was terrifying. She asked the applicant during her abduction which endured for many hours whether he was going to kill her. Her uncertainty as to her ultimate fate was a constant fear. He spoke often of killing himself either with the rifle or with the knife. She was tied by rope to the bedhead for some of the assaults and indecent dealings. The applicant appeared to her to lose control particularly after smoking marijuana. There was one period when she became quite hysterical. As Dr Curtis commented the outcome was very much governed by the conduct of the complainant. That she was stoical should not be reflected in any reduction of sentence. When the whole of the conduct by the applicant is considered it was a terrifying and lengthy ordeal which came to an end when it did through no conduct on the part of the applicant. As Brennan J observed in Channon at p.439, the sentence is moulded by reference to its appropriateness to deter, to rehabilitate and to provide retribution relevant to the conduct in respect of which the sentence is imposed.

The learned sentencing judge in our view took into account all the appropriate mitigatory circumstances, namely the applicant's age and his plea of guilty to an ex officio indictment and good background and psychiatric status when imposing the sentences that he did. His Honour had regard to the mitigatory factors by making a recommendation that the applicant might apply for release on parole a year earlier than the statutory scheme. The parole authorities will scrutinise the applicant carefully before releasing him into the community and that decision cannot be controlled by the courts. We can discern no error on his part.

We would refuse the application for leave to appeal.