R v Butler - [2005] VSCA 293

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…

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 [2005] VSCA 293
Case: [2005] VSCA 293
Decision Date: 8 December 2005

CaseChat Overview and Summary

In the case of R v Butler, the defendant was convicted of a series of sexual offences. The matter was brought before the appellate court, which was tasked with reviewing the sentence imposed by the sentencing judge. The central issue before the court was whether the sentencing judge's awareness of an incorrect maximum penalty had the potential to materially impact the sentence imposed. The appellate court was required to determine whether this error could have influenced the severity of the sentence in a way that warranted reopening the sentencing discretion.

The court examined the relevant legal principles governing the effect of sentencing errors on the imposition of sentences. It considered the proposition that if an appellate court was not satisfied that an error could not have materially affected the sentence, the discretion of the sentencing judge would be reopened. The court found that the sentencing judge had been informed of an incorrect maximum penalty, which could potentially have influenced the severity of the sentence. Given this, the appellate court concluded that it was not satisfied that the error could not have materially affected the sentence. As a result, the court decided to reopen the sentencing discretion, allowing for a re-evaluation of the appropriate penalty.

Consequently, the appellate court determined that the sentence imposed by the original sentencing judge was to be set aside, and the matter was remitted back to the original sentencing court for reconsideration of the sentence. This decision underscored the importance of accurate information in the sentencing process and the appellate court's role in ensuring that any errors that might materially affect a sentence are rectified. The court's ruling highlighted the principle that when an appellate court is not convinced that a sentencing error could not have impacted the sentence, it must exercise its discretion to allow for a proper re-assessment of the appropriate penalty.

Orders