R v Butler
[2021] ACTSC 294
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Butler |
| Citation: | [2021] ACTSC 294 |
| Hearing Date: | 15 November 2021 |
| Decision Date: | 15 November 2021 |
| Before: | Elkaim ACJ |
| Decision: | See [41] |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – use of prohibited weapon – intensive correction order – subjective factors |
| Legislation Cited: | Crimes Act 1900 (ACT) s 24 Prohibited Weapons Act 1966 (ACT) s 5 |
| Parties: | The Queen (Crown) |
| Michael John Butler (Offender) | |
| Representation: | Counsel |
| T Hickey (Crown) J De Bruin (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
| File Number: | SCC 266 of 2020; SCC 267 of 2020 |
| ELKAIM ACJ: |
1. On 29 July 2021 the offender pleaded guilty to three counts in an indictment dated 8 January 2021. The charges and their maximum penalties are:
(a) Two charges of assault occasioning actual bodily harm, committed on 13 August 2020 [SCCAN2021/2] and [SCCAN2021/3] contrary to s 24 of the Crimes Act 1900 (ACT). The maximum penalty for each offence is 5 years imprisonment: (b) Use of a prohibited weapon, committed on 13 August 2020 [CC2020/9660] contrary to s 5 of the Prohibited Weapons Act 1966 (ACT). The maximum penalty is an $80,000 fine, 5 years imprisonment or both. 2. The facts appear in detail in the Agreed Statement of Facts. The following is a summary.
3. There was a flood in the offender’s residence. He had to move out while repairs were
made. He moved to a townhouse in Kambah where his then friends, but soon to be victims, also resided. His friends are brothers. I will refer to them by their first names for convenience, Daniel and Martin.
4. In the evening of 12 August 2020 a Mr David Kearns went to the townhouse with a case of beer and the purpose of celebrating a birthday party. After about an hour Mr Kearns went home. But he discovered that he had left his keys in the townhouse so he went back. He was invited to stay the night to avoid having to catch a taxi home.
5. The group had more to drink. Tension arose between the offender and Mr Kearns. Daniel suggested to the offender that he might like to turn down his aggression towards
Mr Kearns. The offender declined. Daniel said to him “well, if you don’t like it, leave”.
6. Instead of leaving, the offender attacked Daniel. He trapped him on a couch and struck him on the right cheek with an unknown implement. Daniel tried to push the offender away. The offender, armed with a flick knife, stabbed Daniel on the left side of his throat.
7. Mr Kearns, having witnessed the assault, remonstrated with the offender. He intervened. He was stabbed, albeit superficially, in the palm of his hand. He was also punched about his head.
8. Martin then became involved and a heated verbal exchange ensued. The police were called. The offender was arrested. He initially denied possessing the flick knife. The police found it next to a jumper.
9. An ambulance was called. Daniel was treated and transported to hospital. The knife wound was fortunately only to soft tissue. A fracture of the maxillary right sinus was identified. Because there was minimal displacement it was treated conservatively.
10. The offender was in custody for 69 days before being granted bail.
Mr Butler was born in 1967. He was adopted and moved to Sweden with his ‘new’
parents. Regrettably their marriage broke down and his father surrendered him to the Swedish government. This led to him being fostered for some years before being returned to Australia and placed with his maternal grandparents. They were non- functioning alcoholics who did not provide close parental support.
12. The offender left school in Year 8 but did complete his general education certificate while in prison in 1989. Unfortunately he could not complete the next level of education because of a riot at the prison. He has been in and out of prison over many years. Prior to the current offending he had not been in prison since 2006. He had however committed some offences which did not warrant a prison sentence.
13. Mr Butler has had odd jobs and also receives a Disability Support Payment. He has a number of medical issues. In 1989 he suffered a head injury and was diagnosed with liver disease. In 2006 a bacterial condition was found which will require lifelong treatment. He has been diagnosed with Post-Traumatic Stress Disorder (PTSD) and a borderline personality disorder. I will return to some more current medical issues below.
14. In relation to work I have been provided with a letter from a Mr Bolton who currently employs the offender on a casual basis as a cleaner, labourer or administrative assistant. He says he gives him as much work as possible.
15. Mr Butler told the authors of the ICO Assessment Report that he regretted his actions including the loss of a best friend. He accepted that he had been drinking too much. He has had a dependency on heroine for over 20 years. He says that he has given up this drug.
16. Mr Butler has been assessed as suitable for an Intensive Correction Order.
17. There is a victim impact statement which is noteworthy for its graciousness. I will include in its entirety:
I am writing this without any malice for Michael (Butler), for me it is not about seeing any more jail time, as the time served seems sufficient.
This is to say I moved on from that night but my mind has not.
I now sleep surrounded by knives (sic) in different places as my general sleep has suffered bad. My health has taken a 360° and still need medication from my doctor.
For as much as I have tried to leave it behind this event still affects me sadly.
18. I have been provided with a report from Dr Karen Blandford, a clinical psychologist, dated 10 November 2021. She is currently treating Mr Butler. The history that she received of the offending is somewhat different to that in the statement of facts, to the extent that it shifts a good deal of the blame on to the other persons involved.
19. Ms Blandford confirms the diagnosis of PTSD. She says that he also suffers a major
depressive disorder and has “borderline and antisocial personality traits”. She is
treating him with cognitive behavioural therapy which seems to be beneficial. He wishes
to continue with treatment.
Ms Blandford says that his mental health would “deteriorate quite significantly” if he
was returned to custody. She says that he would be:
at risk of re-traumatisation, he would struggle to interact with other inmates, he would be vulnerable and likely not to be able to defend himself if threatened, and I would be concerned about his ability to keep himself safe. His PTSD would likely deteriorate further and become more problematic for him and further impair his level of functioning.
21. There is also a report from Ms Leesa Morris, a forensic psychologist, dated 4 July 2021.
She gives some detail of the offender’s past injuries. When he was 12 or 13 years old
his brother hit him on the head with a piece of concrete and fractured his skull. In 1990 his skull was again fractured when he was shot with a tear gun canister during the riot at Bathurst Jail. He still has a scar from this injury.
22. In 1992 he fractured his pelvis and ruptured discs in his back when he fell from a building. A year later, when drunk, he was knocked over by a motor car. This aggravated his pre-existing injuries.
23. In 1998, when in Junee jail, he was attacked by a group of prisoners. They jumped on his head so that he lost consciousness. There was another assault in Long Bay Gaol, which Mr Butler says was caused by prison officers. This incident is the subject of a negligence claim against the prison authorities.
24. In 2006 Mr Butler was admitted to The Canberra Hospital. He says that ice was injected
into his ankle and he “woke up 3 ½ weeks later”. He suffered a cardiac arrest and
required a mitral valve replacement. He was in hospital for more than three months. He
suffered from MSRA and VRE infections as an inpatient.25. Mr Butler told Ms Morris that he had been “king hit” in the fight in August 2020 and suffered a perforated eardrum. He said that he told the authorities but they did not “write
it down”. He also said that he is currently suffering from “bacterial spinal meningitis” which has affected his memory and cognitive abilities. He told Ms Morris: “I have panic
attacks because of the forgetfulness and I get agitated easily”.
26. The offender told Ms Morris that he was an alcoholic prior to being arrested in 2020. He said that since becoming ill recently he has not consumed alcohol or used heroin. She thought he displayed the characteristics of an alcohol use disorder and an opioid use disorder, both severe but in early remission.
27. The offender also gave Ms Morris a somewhat self-serving description of the events for which he has been charged.
28. However in his letter to me (Exhibit 3) he does express remorse and recognise how wrong his actions were.
Ms Morris thought that there was a “76% likelihood of him reoffending in the next five
years after release from custody based on the current assessment. This is largely due
to Mr Butler’s offending and substance use history from his childhood until his early
30s.”
30. Ms Morris thought that the offender’s heightened level of anxiety would have led him to “perceive threats as being more frequently and/or intensely present than a person
without such conditions”. She said that notwithstanding his long experience of being in
custody, that “while his mental health is at its current state, there is significant risk to
Mr Butler’s ability to interact appropriately with other inmates, defend himself if
victimised, or ensure his safety from self-harm”. This opinion is effectively the same as
that given by Ms Blandford.
31. The offender is currently not very well. There are two medical reports, one from a GP, Dr Clarke, and one from a cardiologist, Dr Hunter.
32. Dr Clarke says that Mr Butler has a perforated left eardrum requiring ongoing treatment. He is due for a graft to his left eardrum. He has had endocarditis and takes anticoagulant and anti-hypertensive medication. He also has diverticular disease and is on the waiting list for an endoscopy. He has low back pain following a motor vehicle accident in 1992.
33. Dr Hunter talks about the offender’s current medication. She says that treating a
pulmonary embolism is difficult because of a problem with diagnosis. This arises from
a difficulty with IV access, presumably in turn related to his use of heroin.34. General and specific deterrence are very important considerations. So too is the need for criminal behaviour to be punished, in particular where a person has suffered significant physical and/or mental harm. In this case there are overwhelming subjective factors. There is also a long history of being in prison which does not seem to have had much of a deterrent effect.
35. Then there is the decency of the victim, who despite what he has suffered, and will
suffer, says that he thinks the jail time already served is “sufficient”.
36. The ICO Assessment Report says the offender is a suitable candidate for an ICO. Normally I would not consider this option, the combination of the criminal history and the nature of the offences demanding a full-time custody sentence. I would not have thought that the 69 days already served was enough.
37. But this really is a quite exceptional case. This had been recognised by the Crown who submitted that a custodial sentence was appropriate but it would be a matter for the Court as to how that sentence should be served. I am grateful to the Crown for taking an attitude that is both fair and relevant to the appropriate sentencing principles.
38. An ICO cannot be backdated. However I am able to take into account the 69 days already spent in custody in setting the term of the ICO. I will also discount the term by 20% because of the plea of guilty.
39. I think the sentence for the assault of Daniel should be slightly longer because of the nature of the injuries involved. Otherwise, bearing in mind all of the charges arise from the same incident, there will be a good deal of concurrency.
40. The sentence for the assault of Daniel will be 24 months (reduced from 30 months). The sentence in respect of Mr Kearns will be 19 months (reduced from 24 months). The sentence for possession of a prohibited weapon will be 6 months imprisonment.
41. I make the following orders:
(i) For the assault occasioning actual bodily harm on Mr Daniel Chisolm [SCCAN2021/3] the offender is sentenced to 24 months imprisonment to commence today and end on 14 November 2023.
(ii) For the assault occasioning actual bodily harm on Mr David Kearns [SCCAN2021/2] the offender sentenced to 19 months imprisonment to commence today and end on 14 June 2023.
(iii) For possession of a prohibited weapon [CC2020/9660] the offender is sentenced to 6 months imprisonment to commence today on and end on 14 May 2022.
(iv) The total term of imprisonment is 24 months.
(v) The above imprisonment is to be served by way of an Intensive Correction Order.
(vi) It is a condition of the ICO that Mr Butler engage in mental health, alcohol and drug assessments, counselling, treatments, or programs as directed by the Director-General.
I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim
Associate:
Date: 15 November 2021
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