R v Butler

Case [2022] SASCA 112

Supreme Court of South Australia

(Court of Appeal: Criminal)

R v BUTLER (A PSEUDONYM)

[2022] SASCA 112

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Auxiliary Justice Mazza)

27 October 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

The respondent pleaded guilty to two counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). On 25 March 2022, the respondent was sentenced to a good behaviour bond pursuant to s 97(1) of the Sentencing Act 2017 (SA) with the recording of a conviction and without any other penalty.

By Notice of Appeal filed 8 April 2022, the Director of Public Prosecutions (SA) sought permission to appeal against the respondent’s sentence on the sole ground that the sentence was manifestly inadequate.

The applicant alleged that the respondent’s offending was so serious that the only penalty that could have been justified was a term of imprisonment, in circumstances where a suspended term of imprisonment and a home detention order were not available sentencing options. The respondent contended that no express error had been made by the sentencing judge and emphasised the mitigating circumstances.  

Held (Lovell JA) refusing permission to appeal:

1.While the sentence imposed was unreasonable and plainly wrong, in the circumstances, considerations of public policy do not require intervention by this Court.

Held (David JA and Mazza AJA) granting the Director permission to appeal, allowing the appeal and resentencing the respondent:

1.Notwithstanding the public interest in ensuring that the respondent is not twice vexed, the seriousness of the offending means that strong considerations of public policy require the Court’s intervention.

2.Despite the mitigating circumstances of the respondent’s offending and his favourable personal circumstances, no penalty other than imprisonment was justified. 

3.The sentence imposed in the District Court was unreasonable and plainly unjust.

4.The order imposing the good behaviour bond is set aside.  The respondent is re-sentenced to imprisonment for three years with a non-parole period of 18 months.

Criminal Law Consolidation Act 1935 (SA) ss 49, 50; Sentencing Act 2017 (SA) ss 3, 4, 9, 10, 11, 71, 96, 97; Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA); Statutes Amendment (Child Sex Offences) Act 2022 (SA) s 7; Criminal Procedure Act 1921 (SA) s 150(a), referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Evans v The Queen [2019] SASCFC 145; Everett v The Queen (1994) 181 CLR 295; Glade v The Queen [2020] SASCFC 83; Green v The Queen (2011) 244 CLR 462; House v The King (1936) 55 CLR 499; McManus v Police [2019] SASC 206; R v Buttigieg

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R v Butler [2022] SASCA 112
Case
[2022] SASCA 112
Decision Date

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Mr Butler, who had been convicted of unlawful sexual intercourse with a complainant under the age of 17. The complainant's victim impact statement detailed the profound and lasting negative effects of the offences on her wellbeing, relationships, and mental health, including a diagnosis of post-traumatic stress disorder. Mr Butler, who was 23 at the time of the offences and 28 at sentencing, had no prior convictions and presented with a background of good relationships, no substance abuse issues, and ongoing education and employment.

The central legal issue before the Court of Appeal was whether the sentencing judge erred in imposing a sentence that was manifestly inadequate, thereby constituting an improper exercise of discretion. This required the Court to consider the severity of the offences, the impact on the victim, and the mitigating and aggravating factors relevant to the respondent's circumstances and offending behaviour. The Court also had to assess the weight to be given to the expert psychological evidence presented regarding the respondent's mental state, his capacity for rehabilitation, and the potential impact of imprisonment on his progress.

The Court of Appeal considered the sentencing judge's reliance on psychological reports which indicated the respondent suffered from persistent depressive disorder, used his sexuality as a maladaptive coping strategy, and was socially immature at the time of the offences. These reports also suggested that the respondent was aware of the wrongfulness of his conduct, had shown remorse and victim empathy, and that his fear of imprisonment could serve as a deterrent. The expert also opined that an immediate term of imprisonment might jeopardise his rehabilitative gains and recommended specific rehabilitation programs. However, the Court noted that the sentencing judge had not adequately accounted for the seriousness of the offences and the significant harm caused to the complainant, particularly in light of the respondent's exploitation of the complainant's vulnerability. The Court found that the sentence imposed did not reflect the gravity of the offending conduct and the need for general deterrence.

The Court of Appeal allowed the Crown's appeal, finding the sentence to be manifestly inadequate. It resentenced the respondent to a term of imprisonment, reflecting the seriousness of the offences and the need to uphold community standards.

Orders

Orders of the court

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Background

Background to the litigation

The complainant read aloud her victim impact statement. It is unnecessary to canvas in detail the contents of that statement. The offences have seriously affected her wellbeing and her relationships, particularly with her mother and her friends at the sporting club. She feels betrayed by the respondent and has issues trusting others. The complainant was diagnosed with post-traumatic stress disorder and has had episodes of freezing up and panic attacks. The complainant stated that she had to work incredibly hard over the last few years to regain the positive personal qualities she once had. The respondent’s background At the time of the commission of the offences, the respondent was 23 years of age. At the date of sentence, he was 28. He has no prior convictions. The respondent had, as he described it to clinical psychologist, Mr Richard Balfour, “a good childhood”. He has good relationships with his parents and his brother. He has no issues with drugs or alcohol and has established friendships. He is currently in a de facto relationship. His partner is supportive of him. The respondent has almost completed a Bachelor of Engineering and was, at the time of sentence, employed on a part-time basis. Throughout school and university, he has been actively involved in various sports. For some years being involved in the sporting club referred to earlier in these reasons, including as a coach. However, he was not the coach of the team to which he and the respondent belonged. It is clear from the character references that were provided to his Honour that the respondent is well regarded by his friends. The sentencing judge was provided with two reports by Mr Balfour dated 14 January 2022 and 30 January 2022. The second report corrected some factual errors contained in the first report. These factual matters did not impact upon the opinions Mr Balfour expressed in his first report. Mr Balfour expressed the following opinions:(a)The respondent suffers from a persistent depressive disorder.(b)The respondent does not possess any of the risk factors identified by researchers as predisposing an individual towards offending behaviour.(c)The respondent does not exhibit any of the behavioural characteristics commonly associated with a paedophilic disorder.(d)At the time of the offences, the respondent was “socially immature”. Rather than discouraging the complainant’s interest in him and distancing himself from her “he has exploited the victim’s natural developmental sexual curiosity to satisfy his unmet needs for emotional and sexual intimacy. He has succumbed to sexual temptation.” (e)The respondent was aware of the wrongfulness of his offending behaviour as evident by his conduct in encouraging the complainant to delete their social media communications. Further, the respondent “deferred having penile-vaginal intercourse with her until she was nearly 17 years old because he was concerned about her young age”. (f)As a consequence of his persistent depressive disorder, the respondent “used his sexuality as a maladaptive coping strategy”.(g)As a result of being detained in a police holding cell for a day which the respondent found to be a frightening experience, the respondent’s fear of imprisonment could be used as an effective personal deterrent against further offending behaviour. (h)If the court was empowered to impose home detention imprisonment, he would be a suitable candidate. (i)Since his arrest on 13 November 2018, the respondent has made “significant progress in rehabilitating himself” and that an immediate term of imprisonment might result in the respondent “losing his current rehabilitative gains”. (j)With the assistance of a supervised, structured rehabilitation program, the respondent’s “prognosis to cease offending is good”. In support of this conclusion, Mr Balfour cited nine reasons including that the respondent was “very remorseful” and had “exhibited victim empathy”. Mr Balfour recommended that the respondent be referred to the Sexual Behaviour Clinic and the Owenia House Programme. The sentencing remarks

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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