R v Butler
[2005] VSCA 293
•8 December 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 44 of 2005
| THE QUEEN |
| v. |
| STEVEN ROBERT BUTLER |
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JUDGES: | CALLAWAY, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 December 2005 | |
DATE OF JUDGMENT: | 8 December 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 293 | |
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Criminal law – Sentence – Sexual offences – Sentencing judge informed of incorrect maximum sentence – Appellate Court not satisfied that the error could not have materially affected the sentence – Discretion reopened.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.R.C. Southey | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr J.W. Lee |
CALLAWAY, J.A.:
I invite Buchanan, J.A. to deliver the first judgment.
BUCHANAN, J.A.:
The appellant was arraigned in the County Court and pleaded guilty to a presentment containing six counts of an indecent act with or in the presence of a child under the age of 16 years and six counts of sexual penetration of a child under the age of 16 years. After a plea the appellant was sentenced to be imprisoned on each count, the sentences ranging from 12 months' imprisonment to five years' imprisonment. With a measure of cumulation a total effective sentence of nine years' imprisonment was produced. The sentencing judge ordered that the appellant serve a minimum term of six years' imprisonment before becoming eligible for parole.
The appellant is now 50 years of age. He lived in a small town in Gippsland. The victim of the offences was between the ages of ten and twelve at the time of the commission of the offences and lived with his parents next door to the house of the appellant. The victim was a regular visitor to the appellant's house and shared with the appellant an interest in pet birds.
In 2002 the appellant invited the victim to the appellant's house, when the boy was aged ten years. The appellant urinated in front of the victim and, having concluded that, began to play with his penis. He then asked the boy to go into a garden shed and there masturbated until he ejaculated in front of the victim. (Count 1). On another occasion the appellant asked the boy to visit his house and feed the appellant's birds. In the shed the appellant touched the victim's penis and began to masturbate him. The victim became uncomfortable and went home. (Count 2.) Later in the year the appellant took his victim to the appellant's bedroom, where they undressed and on the bed the appellant and his victim masturbated each other simultaneously. (Count 3.) Counts 4, 5 and 6 were other instances of the appellant masturbating his victim or the victim masturbating the appellant. Count 7 concerned an occasion on which the appellant and his victim went to the garden
shed, the appellant pulled down his victim's pants and commenced licking his penis before taking it in his mouth and sucking it, an activity which lasted about three minutes. Another instance which occurred in the shed involved the appellant saying that if the victim would suck his penis, the appellant would give him five birds. Both the appellant and his victim removed their clothing. The victim placed the appellant's erect penis in his mouth and commenced to suck it. He did so until the appellant was about to ejaculate, whereupon he took his penis out of the victim's mouth and masturbated himself to the point of ejaculation. (Count 8.) Count 9 concerned another occasion upon which the appellant asked the victim to suck his penis and the victim complied. Again the appellant masturbated to the point of ejaculation.
In 2003 the appellant and his victim were lying on the appellant's bed while the appellant wore a silver metal ring on his penis. The victim placed the appellant's penis inside his mouth and sucked until the appellant was about to ejaculate. The appellant requested his victim to keep sucking; however, he refused to do so. (Count 10.) On another occasion the appellant and his victim, in the bedroom of the appellant's house, were both naked while the appellant played with the victim's penis until it became erect. The appellant got on his hands and knees with his victim behind him. At the appellant's request the victim pushed his penis inside the appellant's anus, an activity which lasted for about two minutes. (Count 11.) The final count concerned an occasion when the appellant and his victim were both lying on the bed of the appellant naked. The appellant showed his victim magazines depicting men having anal sex with each other and instructed his victim to bend over so that the appellant could do that to him. The appellant assured his victim that it would not hurt. He rubbed gel on his penis and around his victim's anus. The victim then got on his hands and knees and placed his head on the bed. The appellant approached him from behind and pushed his penis into his anus. The victim complained of pain. The appellant nevertheless persisted until eventually he heeded the boy's request that he stop.
A number of uncharged acts were alleged. The counts, save counts 2, 4 and 9, were representative counts. The activities involved the use of sexual aids such as a penis pump, penis rings, lubricating gel, pornographic videos and magazines.
The offences ceased in late November 2003 when the appellant's victim told his father what he had been doing. The police were notified, searched the appellant's premises and arrested him. In the course of a record of interview the appellant admitted most of the conduct which was alleged against him, claiming that it was instigated by the victim, and that he did not feel he was doing anything wrong. When he was asked by the police whether he believed he had done the wrong thing, he said:
"I thought I was being more of a friend to him more than anything else, helping him with sexual issues he obviously had."
According to victim impact statements made by the parents of the appellant's victim, he has nightmares and shows signs of developing severe behavioural and social problems. The victim refuses to sleep in his own bedroom alone, and can only sleep with the light on. He still apparently wakes the family by screaming and thrashing at night.
The appellant has a record of regular employment. He was a chef by training, but for the last 20 years had worked mainly as a salesman. At the time of the offending the appellant was employed as manager of a firm engaged in business as a wholesaler. The appellant is single. He had two long-term relationships, one lasting some 15 years. At the time of the offending he lived alone.
A report by a psychiatrist was tendered during the course of the plea. The psychiatrist said that the appellant was a man of normal intelligence who did not have any significant psychiatric disorder. The psychiatrist noted the opinion of another psychiatrist that it was unlikely that the appellant would re-offend, and said that he could not be confident of that unless there was appropriate intervention. He thought he might be best managed when he returned to the community by the use of anti-libidinous drugs which would totally suppress his sexuality. The other psychiatrist reported that despite early heterosexual experiences, the appellant confessed to being openly homosexual. The appellant told the psychiatrist, as he did the other psychiatrist and the police, that his victim was actively involved in the conduct constituting the offences and initiated much of the activity. The psychiatrist's view that it was unlikely that the appellant would re-offend was due to his acceptance that this was the only occasion upon which the appellant had been sexually involved with a child and the appellant's statement that he generally had no interest in children, had no interest in child pornography and was not apparently a forceful or aggressive person.
There are a number of grounds of appeal. It is necessary to deal with only one of them, which is that "the learned trial judge was misled as to the maximum applicable to counts 7 to 12".
In the course of the plea the prosecutor told the sentencing judge that the maximum penalty for the offence of an indecent act with or in the presence of a child under the age of 16 years was ten years' imprisonment and that the maximum penalty for penetration of a child under the age of 16 years was 25 years' imprisonment. In fact s.45 of the Crimes Act 1958 provides that the maximum penalty of 25 years' imprisonment applies only where the court is satisfied beyond reasonable doubt that at the time of the offence the child was under the age of ten years. If the court is satisfied that the child was between the ages of ten and 16 years and under the care, supervision or authority of the accused, the maximum sentence is 15 years' imprisonment. In any other case the maximum term is 10 years' imprisonment.
Counsel for the appellant relied on the fact that the sentencing judge imposed considerably higher terms of imprisonment on the counts involving sexual penetration. The sentences were 12 months' imprisonment for counts 1 and 2, 15 months' imprisonment for counts 3 to 6, three years' imprisonment for counts 7 to 10, four years' imprisonment for count 11 and five years' imprisonment for count 12.
In my view his Honour was justified in imposing for offences involving penetration significantly longer sentences than for offences involving masturbation. Offences of the former type are obviously graver in terms of their culpability and the potential consequences for the victim than offences of the latter type. Nevertheless, it appears that the sentencing judge was misled as to the maximum sentences for half the counts by a very large margin, and it appears to me to be likely that the mistake affected the instinctive synthesis that produced the individual sentences. Where a mistake as to the maximum penalty has been made, an appellate court ought not to hold that the mistake does not reopen the discretion unless it is satisfied that the mistake could not have materially affected the sentence, that is, the factor was so insignificant in the circumstances of a particular case that the failure to take it into account could not have materially affected the decision. See R. v. Beary[1]. In the present case I am not satisfied that the mistake could not have materially affected the sentence.
[1][2004] VSCA 229 at paragraph [21] per Callaway, J.A.
The offences were very serious. They constituted a gross corruption of a young, vulnerable boy in a systematic seduction spread over a considerable period of time, consisting of an escalating series of invasive acts. They are likely to have long term effects upon the victim. The law must protect young persons from such exploitation and abuse. General deterrence is of considerable importance.
The appellant could rely upon a number of mitigating factors. He pleaded guilty at the earliest opportunity, which entitled the appellant to a discount, for he thereby facilitated the administration of justice and spared his victim the ordeal of a trial. The trial judge found that the appellant had "some remorse" for his conduct. The appellant had no prior convictions and was a man of good character. He had a good work record and was trusted and respected by those who knew him. The sentencing judge found that the appellant had a reasonable prospect of successful rehabilitation.
The appellant is to be sentenced in respect of the counts after count 2 as a serious sexual offender pursuant to the provisions of Part 2A of the Sentencing Act 1991. I do not think it is necessary to impose a disproportionate sentence in order to protect the community from the appellant.
Like the sentencing judge, I would fix a relatively long parole period in order to facilitate the rehabilitation of the appellant.
I would resentence the appellant to be imprisoned for a term of 12 months on each of counts 1 and 2, to a term of 15 months on each of counts 3, 4, 5 and 6, to a term of two-and-a-half years' imprisonment on each of counts 7, 8, 9 and 10 and to a term of four years' imprisonment on each of counts 11 and 12. I would order that two months of the sentences imposed on each of counts 1, 2, 3, 4, 5 and 6, five months of the sentences imposed on each of counts 7, 8, 9 and 10 and ten months of the sentence imposed on count 11 be served cumulatively on each other and on the sentence imposed on count 12. The total effective sentence would be seven-and-a-half years' imprisonment. I would fix a period of five years before the appellant is to be eligible for parole.
CALLAWAY, J.A.:
I agree.
VINCENT, J.A.:
I agree.
CALLAWAY, J.A.:
The formal orders of the Court will be as follows:
The appeal is allowed.
The sentences imposed below are quashed.
In lieu thereof, the appellant is sentenced to 12 months' imprisonment on each of counts 1 and 2, 15 months' imprisonment on each of counts 3, 4, 5 and 6, two-and-a-half years' imprisonment on each of counts 7, 8, 9 and 10 and four years' imprisonment on each of counts 11 and 12.
The Court directs that two months of each of the sentences imposed on counts 1, 2, 3, 4, 5 and 6, five months of each of the sentences imposed on counts 7, 8, 9 and 10 and ten months of the sentence imposed on count 11 be served cumulatively upon each other and upon the sentence imposed on count 12, but that otherwise all the sentences be served concurrently, making a total effective sentence of seven-and-a-half years' imprisonment.
A non-parole period of five years is fixed.
It is declared that the period of 373 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
The appellant is sentenced for the offences the subject of each of counts 3 to 12 as a serious sexual offender and it is ordered that that fact be entered in the records of the Court.
It is declared that the appellant must continue to comply with the reporting obligations imposed by Part 3 of the Sex Offenders Registration Act 2004 for the remainder of his life.
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