R v Butler
[2007] VSC 185
•1 June 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No.1443 of 2006
| THE QUEEN |
| v |
| CHRISTOPHER BRIAN BUTLER |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May 2007 | |
DATE OF SENTENCE: | 1 June 2007 | |
CASE MAY BE CITED AS: | R v Christopher Brian Butler | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 185 | |
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CRIMINAL LAW – Sentence – Domestic Murder – Intentionally Cause Serious Injury
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr McDermott | Office of Public Prosecutions |
| For the Accused | Mr Rochford | Mr S. English |
HER HONOUR:
Christopher Brian Butler you have been found guilty by jury verdict of one count of murder and you have pleaded guilty to one count of intentionally causing serious injury. You have also admitted prior convictions.
Shortly after Christmas in 2004 you made contact with Deborah Lorna Hinton who had placed her profile on a telephone dating service. For a time you spoke to each other daily and eventually agreed to meet at Mrs Hinton’s place of work. This you did and it appears the meeting was agreeable to both of you. You continued to be in contact by telephone and subsequently you invited Mrs Hinton to your flat in St Kilda. This occurred in mid to late January 2005. Mrs Hinton stayed with you for ten days or so and you later told the police that during this time the two of you got on well together. Mrs Hinton discussed with you the difficulties she had in meeting her expenses and it was agreed that she would move into your flat which she did. The relationship continued to be relatively harmonious at least until the middle of February 2005 when the relationship turned violent; which appears to have been fuelled by a combination of alcohol and your insecurities. On a number of occasions you perceived Mrs Hinton to be paying attention to other men and you responded by physically assaulting her. There were a number of incidences of such conduct and at one point Mrs Hinton left the flat and spent the night at the home of a friend. Nevertheless, she returned to the flat the following day only to be assaulted again, by you the following week. On that occasion such was Mrs Hinton’s condition that she asked you to take her to hospital but you refused to do so saying that it would get you into trouble. A short time after this you wrote Mrs Hinton a letter acknowledging that you were a violent person, you said, because of your upbringing, that you hated waking up and seeing how she looked, that you loved her and you would try not to lay a finger on her again.
Despite your assurances you did in fact continue to assault Mrs Hinton and on 2 April 2005, following some minor incidents between the two of you, Mrs Hinton called 000 and the police attended at your flat.
Mrs Hinton’s appearance was such that the police arranged for her to attend the Alfred Hospital where she was examined by Doctor Rai who noted a number of injuries, but in particular a swollen left wrist which upon x-ray was found to be fractured. This forms the subject of count one on the presentment that of intentionally causing serious injury.
You were interviewed by the police on 3 April 2005 and told them that your relationship with Mrs Hinton had been marked by violence perpetrated by you and you admitted various assaults upon her. You were not aware that she had suffered a broken wrist and when asked how that could have occurred you replied “Probably when I threw her towards the door, probably landed awkwardly”. You also told the police that you had a problem with females, which stemmed from your mother and in your words you have “a very big problem with violence and me de facto’s”, (question 190 of the record of interview), and that you hate yourself for it. You concluded the interview by saying you were sorry and you would like to seek help for “This lifetime problem I‘ve had”.
Some eight weeks later on the afternoon of 9 June 2005, you and Mrs Hinton went to the home of your sister Diane Cosby at Altona Meadows. You arrived there between 12.30 and 1pm and you left with Mrs Hinton at about 9.15pm. During that time Mrs Cosby and Mrs Hinton drank two bottles of champagne and you drank six stubbies of beer, the three of you consumed a 4 litre cask of wine and you then drank cooking sherry. When you left Mrs Cosby’s home there was nothing untoward about your behaviour or Mrs Hinton’s appearance.
You drove home to your flat in Crimea Street, St Kilda, and sometime between 9.46pm and 9.53pm, whilst a resident of a neighbouring block of flats was on the telephone, the sound of breaking glass was heard. This, according to the Crown, indicates the approximate time the assault commenced. Neighbours heard raised voices arguing, a lot of banging and crashing, the sound of thuds, and what sounded like someone hitting a wall. Although what was said could not be clearly heard, the male voice was said to be predominant, and the female voice was heard to say calmly and softly that she was going to bed.
After the banging and crashing had stopped, which one witness Ms Evers said went for four or five minutes, another witness Mr Greenless, heard the sound of someone walking around a room and what sounded like a man grunting and groaning. He also heard the sound of glass breaking and the screen door slamming or something banging against the door. Indeed, he heard the door banging four or five times and he did not hear the female voice after that. The witnesses generally agreed that they heard the various sounds over a period of some 10 to 15 minutes.
You were next seen at the entrance to the emergency department of the Alfred Hospital at approximately 6.20am the following morning. You had driven there in Mrs Hinton’s car with Mrs Hinton lying in the back seat. You drove up the ramp at speed, which brought you to the attention of two hospital staff who were on their break. You called out to them for help and on seeing Mrs Hinton in the car one of the orderlies went into the hospital to get a trolley and further assistance. It appears from the CCTV film which was tendered in evidence at the trial that you followed him in. You said to one orderly, no doubt by way of explanation, “She came home like this after a night out”. The triage nurse, Nurse Kruger, asked you what had happened and you replied “My wife is in the car and she is not breathing”.
Mrs Hinton was taken into the Trauma bay and you, on the pretence of parking the car left the hospital, but before doing so you provided the hospital clerk with Mrs Hinton’s details. Upon your failure to return to the hospital the matter was reported to the police, and by 7.55am that morning the police had attended your flat where they observed the signs of violent activity and declared the flat a crime scene and you a person of interest.
At the hospital Mrs Hinton was attended to by Dr Hartnell, who stated in evidence, that upon her admission, Mrs Hinton had obvious signs of trauma to her face, she was not breathing, she was unconscious, not responsive, and in need of resuscitation which was successfully undertaken. A further examination showed that the Mrs Hinton was suffering a laceration to the bridge of the nose, bilateral periorbital haematoma, bruising underneath the chin, blood present in both ear canals, bilateral bruising to the shoulders, bruising to the right lateral flank and a large bruise on the left thigh. A CT scan was performed and it revealed significant brain swelling, a left superior orbital fracture, a nasal fracture, a dislocated right temporomandibular joint and a fracture of the right mandible. Dr Hartnell described Mrs Hinton’s injuries as “Extremely severe”.
Later that morning Doctor Rebecca Quake, Registrar of Clinical Forensic Medicine was requested by the homicide squad to conduct an examination of Mrs Hinton. At this time she was alive but still unconscious and on life support. Doctor Quake observed that Mrs Hinton had suffered injuries of multiple type and variety occurring on different anatomical planes and that some of the injuries would have required quite significant force to inflict them, such as the fracture to the mandible and the head injuries, which in her view suggested inflicted injury rather than accidental injury.
In the meantime it appears that you rang your sister at 7am and told her you could not remember leaving her home and you thought that you had killed Debbie. You also rang a friend, Mark Bourke, and told him that you had woken up and realised that Debbie was in a mess, that you tried to give her mouth-to-mouth resuscitation that you did not know what had happened and you had been drinking heavily with Debbie the previous evening. You told Mr Bourke that you might have done it and he advised you to go to the police.
Throughout the course of the day you spoke to a number of your associates and variously gave to them an account of what, you said, you could recall.
You told Mr Thomas Watts that you could not recall what happened, that you had woken and found Debbie was not in the bedroom with you. You found her on the floor in the lounge room. You remembered nothing after you had been drinking and gone to bed. You told Mrs Anita Harris you thought you had killed Debbie and that you had been to your sisters and had a few drinks, that you and Debbie had, had an argument and then you went to bed and when you found Mrs Hinton you tried to give her CPR but you did not know exactly what happened.
In the presence of Mrs Phelan you said blacked out and could not recall what had happened until you came to in the morning. To Gary Simpson you said you must have been responsible for what happened because no one else was at the flat. To Damien Carroll you said that there was damage to the flat, you did not know how it had occurred you had to much to drink and you had been drinking cooking wine and you could not recall getting home. You also told him that you had gone to bed and found Mrs Hinton in bed beside you, that she was not breathing and you did not know how she came to be there. There was blood on her face and wrist and her teeth were broken and you could not recall if you had punched her in the mouth but there were no marks on your fist.
It appears you stayed the Friday night at Mrs Harris’s flat and the next morning Saturday 11 June 2005 you were arrested at the home of Gary Simpson.
You were subsequently interviewed by officers from the homicide squad and in that interview you were adamant that you did not commit this assault on Mrs Hinton although you frankly admitted that you had in the past. You agreed with the police that you must have left your sister’s home at quarter-past nine on Thursday night as she has said you did, and that you must have gone home, because that was where you woke up in the morning. You were asked if you were capable of driving to get home and you said you did not know if you were capable but you did drive home. Then, when asked what happened when you got home, you said “Well that’s what I am puzzled about, that’s what I have been thinking about for the last 24 hours, I’m thinking, well what happened at home, well I don’t know”.
You went on to tell the police that you woke up in the morning and Mrs Hinton was on the lounge room floor with blood all over her face, you cleaned her up a little bit and put her into bed. You told the police that she looked “Not too bad” but that her teeth were gone. When you found her you described your own condition as being “Hung-over and crook”, you thought she would be okay until the morning and that you would then get her to hospital; you went back to sleep beside her, you woke an hour later and she had stopped breathing. You told the police you then commenced CPR and heart massage, you picked up Mrs Hinton and put her back in the lounge room and tried the CPR again and then you said you “Started to freak out.” You told the police that you could not find the keys and you could not open the front door. You went to the tool box and got the hammer but the handle broke off and eventually you got hold of sheet metal cutters and snapped the lock. You opened the door and dragged Mrs Hinton out and into the car and then drove to the Alfred Hospital. You returned to the flat and spent some five to ten minutes cleaning up the glass and it was then that you went to Anita Harris’s flat. Throughout the interview, as stated previously, you denied assaulting Mrs Hinton you said you had no recollection of it and did not believe you had committed the assault.
At the conclusion of the interview you were charged with offences relating to assault as Mrs Hinton was still alive but at 8pm that night the police were advised that Mrs Hinton had died and you were consequently charged with murder.
A post-mortem was conducted by pathologist Dr Isles and in her opinion the cause of death were injuries to the head and neck. In terms of the degree of severity the injuries to the region of the head were of a severe nature; there were injuries over a number of planes of the body and they were all consistent with applications of blunt force. In her opinion the injury to the jaw and the injury to the brain and tissues surrounding it were consistent with blunt trauma such as coming into forceful contact with a hard object, consistent with being forcibly propelled into an object or blunt force being delivered by an object. The fracture of the hyoid bone was also a blunt force injury consistent with being struck by an object. Mrs Hinton had also suffered a stab wound at the back of the thigh, although this was not related to the cause of death.
I turn now to matters personal to you.
You are 43 years old and have admitted a 110 prior convictions from 22 court appearances. These include offences of common assault, seven charges of intentionally or recklessly causing injury, and one charge of intentionally causing serious injury. Your previous dispositions have included detention in a youth training centre, probation, suspended sentences of imprisonment, periods of imprisonment actually to be served, community based orders (which you have breached) and fines. You most recently served a sentence of 12 months imprisonment with a non-parole period of six months imposed in September 2002 for intentionally causing injury. Between September 1983 and September 2002 you were before the courts on nine occasions for offences of violence a number of which, it was submitted, arose out of your relationships with women.
The Court obtained a psychiatric report from Forensicare consultant psychiatrist, Dr Shannon Reid, of the Victorian Institute of Forensic Mental Health, which was tendered in evidence as exhibit E. Mr Rochford on your behalf tendered in evidence the report of clinical and forensic psychologist Mr Jeffrey Cummins dated 4 May 2007 as exhibit 1 and the neuropsychological report of Dr Goh dated 11 February 2007 was also tendered in evidence as exhibit 3. I accept the matters contained therein as to your personal circumstances and antecedents and I accept the professional opinions as to your presentation also expressed therein.
Both your parents were alcoholics, they separated when you were an infant. You were effectively abandoned by your mother and lived with your father until the age of 16. I accept that you had a violent and grossly abusive childhood and adolescence at the hands of your father and indeed, from time to time, your mother was also violent towards you.
It appears that you have been suffering a depressed mood since the age of seven and indeed, at the age of eight you attempted suicide; your efforts being thwarted when a neighbour found you hanging from a clothes line. In your adolescent years you were preyed upon by two men who subjected you, and two of your friends to inappropriate sexual advances and it was in this situation it is said that you began to consume alcohol heavily and use marijuana. As I understand it, you are presently awaiting giving evidence in the trial of one of your abusers.
You left school halfway through Year Eight at the age of 14 and for 18 months you worked at the Victoria market. You have been on social services for most of your life but you have worked casually as a furniture removalist and as a gardener. You have most recently worked as a casual labourer and indeed your employer at the time, Damien Carroll, gave evidence at your trial.
You are the father of four children all of whom were born to different mothers.
Over the years you have become a chronic alcoholic. At the age of 21 you spent six weeks at Pleasant View and at the age of 30 you spent one month at the Salvation Army Bridge Programme. I accept that over the years you have made a number of unsuccessful attempts to abstain from alcohol. Yet the neuropsychological report of Dr Goh assessed you as being of low average to average intellectual function with no significant deterioration in your cognitive skills, your memory skills showed no evidence of impairment and your neuropsychological assessment was not consistent with persisting cognitive effects of alcohol abuse. I nonetheless accept that you have been diagnosed as a chronic alcoholic. You first saw a psychiatrist when you were 13 through the agency of the Children’s Court and you told Dr Reid that you saw a psychiatrist at this time over a 12 month period concerning anger issues. When you were 20 you again engaged with a psychiatric service for 12 months again concerning anger issues and you saw a psychiatrist yet again when you were 31, once again, for anger issues. You also reported to both Dr Reid and Mr Cummins a history of daily cannabis use over the last 15 to 20 years and regular amphetamine use which you said had the effect of lifting your depressed mood. You stated to Mr Cummins that when intoxicated you become angry, and often uncontrollably so, but that when you are sober you are placid and not angry. You told Dr Reid that you had experienced problems associated with depressed mood since you were seven and that the only way you could gain respite from your depression was when you were intoxicated. In Dr Reid’s opinion, ironically, despite the transient elevation of symptoms your alcohol use is likely to have maintained your symptoms of mood disorder in the long term. You told Dr Reid that not all your relationships with women had been violent, but violence has occurred in relationships with those women who had themselves a problem with alcohol.
So it appears that throughout your adult life you have understood that you have a problem with anger and you have been aware of the nexus between alcohol and violence yet it appears you could not maintain your decision to remain sober. You knew you had a propensity for violent behaviour particularly towards women when you were intoxicated. The pattern of you behaviour must have been apparent to you, you had seen the consequences of it and you said you hated yourself for it yet you continued to drink which therefore regrettably, almost inevitably, led to the tragic fatal outcome here.
I accept that you have insight into your offending conduct and that you now understand the absolute imperative that you must abstain from alcohol and possibly other drugs for the rest of you life if you are not to commit further offences.
Dr Reid diagnosed you as having a dysthymic disorder with a history of major depressive episodes and a history of alcohol dependence. Mr Cummins supported that diagnosis and opined that you most probably have a borderline personality disorder and that you would be diagnosed as a chronic alcoholic. To this end he noted that it should be a condition of your parole that you be required to refrain from drinking alcohol and you should be encouraged to take medication to assist you in that course. You are currently on anti-depressants which are generally having a beneficial effect.
You have expressed your remorse, shame and contrition to both Mr Cummins and Dr Reid and Dr Reid has reported that you have indicated to her a sense of responsibility for your own conduct and a high level of remorse. Indeed you initially offered to plead guilty to a charge of manslaughter, which offer was rejected by the Crown, thus I accept that you have from an early stage accepted your responsibility for the death of Mrs Hinton. It must, however, be said that the Crown’s rejection of your plea has been vindicated by the jury verdict. You have had read to the court and tendered as exhibit 2 a letter in which you expressed your deepest heartfelt condolences to Mrs Hinton’s family, your remorse and contrition. I accept that you are genuinely remorseful for having killed Mrs Hinton.
The maximum penalty for the crime of murder is life imprisonment. The maximum penalty for intentionally causing serious injury is 20 years imprisonment. In sentencing you I must take into account the nature and gravity of each of the offences here committed and your role in them. Both offences occurred in domestic circumstances in that Mrs Hinton was your partner, whom you professed to love, and both offences occurred in the sanctity of the home you shared. You assaulted Mrs Hinton on many occasions and although I am only sentencing you in respect of the fractured wrist the subject of count one, nonetheless, that count maybe put in the context of a relationship which was marked by violence. Thus this was not an isolated act nor could it be said to be an aberration on your part. Further you knew because you had expressed it to Mrs Hinton that alcohol disinhibited you to the point of uncontrollable anger and violence. Indeed, you had expressed to her your regret and your self-rapprochement. So that by June 2005 you knew that excessive alcohol could lead to violence being inflicted upon Mrs Hinton and that such violence could result in injury to her as indeed it had in the past. It is in these circumstances that you drank excessively and came to brutally and savagely assault her on the night of 9 June 2005.
The Crown went to the jury on the basis at the very, very least you intended to cause Mrs Hinton really serious injury and I propose to sentence you on that basis and that is so because all of the injuries which were a cause of death were inflicted in some way by blunt trauma. It was not put by the Crown that you used any weapon per se in the infliction of the fatal injuries and the Crown specifically did not contend that the fracture to the hyoid bone was the result of a choking or strangulating act nor were you heard to express any words consistent with an intention to kill. Nonetheless, this was a brutal assault as evidenced by the nature, multiplicity and location of the injuries suffered by Mrs Hinton and the force which would have been required to inflict them. Although the sounds of the disturbance endured for some 15 minutes, I accept that the assault was not physically sustained throughout that time. Nonetheless, during that 15 minutes Mrs Hinton’s voice was never heard to be raised indeed it sounded as if she were placating you and your voice was heard to be predominant. There is nothing to suggest that Mrs Hinton may have engaged in any behaviour which provoked you, you were not injured in anyway and in these circumstances the Court may conclude that the dynamics of the assault was entirely one-way. As you have only very limited recollection of the events of this night we may never know what was the catalyst that lead to this assault; whether it be a casual remark and your distorted perception of it or your uncontrollable anger unleashed upon Mrs Hinton by reason of your excessive alcohol intake that night. Whatever it be the, the objective facts make this a bad example of a serious offence and in my view your culpability is high.
Victim impact statements made by Mr Graham Hinton, Mrs Hinton’s former husband, and Ms Karen Greenburgh were tendered in evidence as exhibits C and D respectively. Ms Greenburgh, a close family friend, speaks of the impact of Mrs Hinton’s death upon her and her own family. Mr Hinton who sat throughout everyday of the trial speaks in particular, of the on-going distress suffered by Mrs Hinton’s sons who have all suffered the loss of their loving mother, not only her presence but her love and support in the years to come. I accept that Mrs Hinton’s death is the source of great sadness and loss to those who loved her and in particular to her five surviving sons.
In sentencing you I must take into account the need to pass a sentence which will serve to punish you and act in denunciation of your conduct. Further, any sentence must also give due weight to considerations of specific deterrence and this is particularly so where previous dispositions imposed in respect of offences of violence have failed to deter you from re-offending in a like manner. Due weight must also be given to general deterrence so that likeminded members of the community will know that the taking of life in circumstances such as those here present will result in salutary punishment.
By reason of your prior convictions you are to be sentenced in respect of both counts as a serious violent offender. As I consider that a sentence of imprisonment is justified in determining the length of that sentence I must have regard to the protection of the community from the offender as the principal purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of their objective circumstances. As I propose to order a substantial period of imprisonment I do not propose to order a sentence which is longer than the that which is proportionate to the gravity of the offence considered in light of its objective circumstances because I am satisfied that the sentence to be imposed will protect the community from you.
In sentencing you I take into account your plea of guilty in respect of count one on the presentment and I give you a discount on the sentence I would otherwise have imposed in respect of that count. I take into account also that by reason of that plea you have obviated the necessity of a trial in respect of that matter, had it needed to be taken place. I take into account also that you accepted responsibility for the death of Mrs Hinton at an early stage in the proceedings. I take into account also that you are genuinely remorseful and contrite, that you have insight into your offending conduct and that you have resolved to abstain from alcohol and drugs, and that with such insight and resolve at the age of 43 your prospects for rehabilitation cannot be said to be without hope. In sentencing you I take into account all matters personal to you including your grossly abusive upbringing and adolescence, that you have suffered depression throughout most of your life, that you have only now been diagnosed as being suffering from chronic depression and that you are now being treated for it. I take into account that you suffer as reported by Dr Reid from dysthymic mood disorder, that you possibly have a border-line personality disorder and that you are chronic alcoholic.
In sentencing you I take into account all matters which go in your favour and accordingly you are convicted and sentenced as follows:
Count 1 - intentionally causing serious injury
3 years imprisonment
Count 2 – murder
21 years imprisonment.
By reason of s6E of the Sentencing Act every term of imprisonment imposed on a serious offender must unless otherwise directed by the Court be served cumulatively. As these are two discrete offences and mindful of the need not to impose a sentence which would be otherwise crushing and so as to address the principles of totality and proportionality I propose pursuant to s6E of the Sentencing Act to otherwise order that one year of the sentence imposed in respect of count 1 be served cumulatively with the sentence imposed on count two, that is, 22 years imprisonment and I declare that you serve a period of 17 years before becoming eligible for parole and I declare that you have already served a period of 720 days. I declare that you have been sentenced as a serious offender and I cause to be entered in the records of the Court that fact that you have been sentenced as a serious offender.
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