R v Butt - [2021] NSWDC 807

District Court

New South Wales

Medium Neutral Citation: R v Butt [2021] NSWDC 807
Hearing dates: 5 November 2021
Date of orders: 5 November 2021
Decision date: 05 November 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Use carriage service to groom under 16 years for sex:
Sentenced to a term of imprisonment of 1 year 6 months.
Use carriage service to groom under 16 years for sex:
Sentenced to a term of imprisonment of 1 year 4 months.
Total Sentence - Release at the expiration of 10 months upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914 (Cth)

Catchwords:
CRIME – Use carriage service to groom under 16 years for sex
SENTENCING - Relevant factors on sentence - cybersex offences - age disparity between offender and victims - victim impact - guilty plea - committed while on ICO

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
Adamson v R (2015) 47 VR 268
Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Meadows v R [2017] VSC 290
R v Engein [2014] QCA 313
R v Nahlous [2013] NSWCC 90
R v Thompson (2000) 49 NSWLR 383
R v Whiteman [2021] NSWDC 557
Rampley v R [2010] NSWCCA 293
Stanton v R [2021] NSWCCA 123

Texts Cited:
Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, (2017) Vol 3
Sentencing, Stockdale and Devlin (1987)

Category: Sentence
Parties: Jay Butt (the offender)
Commonwealth Director of Public Prosecutions
Representation:
Counsel:
Mr R Steward (for the offender)
Solicitors:
Legal Aid NSW (for the offender)
Mr J Inan (for Commonwealth Director of Public Prosecutions)

File Number(s): 2021/00006218
Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a child victim. Identifying information has been removed from this version of the judgment to comply with the statute. Pseudonyms have been used for the names of the children and their online avatar names or icons/representative symbols.

sentence – EX TEMPORE REVISED

This morning Jay Butt adhered to guilty pleas entered in the Local Court to two counts of using a carriage person to groom a person under the age of 16 that relate to two young 13 year old girls: s 474.17(1) of the Criminal Code Act 1995 (Cth). The first offence, sequence 7, had at the relevant time a maximum penalty of 12 years imprisonment. In 2020, and before the commission of the second offence, Commonwealth Parliament increased the maximum penalty to 15 years imprisonment.
The guilty pleas require some reduction in the otherwise appropriate sentences to take into account the utilitarian value of his plea, assistance to the course of justice and acceptance of responsibility. The pleas meant that the two young victims did not have to give evidence at trial. It has been long recognised…

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 Butt

Details

AGLC: R v Butt [2021] NSWDC 807
Case: [2021] NSWDC 807
Decision Date: 05 November 2021

CaseChat Overview and Summary

The accused, Butt, was sentenced in the Federal Circuit and Family Court of Australia for using a carriage service to groom individuals under 16 years old for sexual purposes. The court had to address two separate charges, each involving the use of a carriage service to groom a minor for sex. The primary legal issues were the determination of an appropriate sentence for these offences, taking into account various relevant factors. These included the nature of the cybersex offences, the age difference between the offender and the victims, the impact on the victims, Butt's guilty plea, and the fact that the crimes were committed while on an Intensive Corrections Order (ICO).

The court meticulously evaluated these factors to arrive at a just sentence. The age disparity between Butt and his victims was a critical consideration, as was the significant impact the offences had on the victims. The court also took into account Butt's guilty plea, which typically results in a reduced sentence. However, the fact that the offences were committed while he was on an ICO, which was intended to prevent such behaviour, was seen as a mitigating factor but not enough to substantially reduce the sentence. The court determined that a term of imprisonment was necessary to adequately reflect the seriousness of the offences, their impact on the victims, and the need for general deterrence. Consequently, Butt was sentenced to 1 year 6 months for the first charge and 1 year 4 months for the second charge, with a total sentence of release at the expiration of 10 months upon entering a recognizance.

Orders

Orders of the court

Use carriage service to groom under 16 years for sex:

Sentenced to a term of imprisonment of 1 year 6 months.

Use carriage service to groom under 16 years for sex:

Sentenced to a term of imprisonment of 1 year 4 months.

Total Sentence - Release at the expiration of 10 months upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914 (Cth)

Background

Background to the litigation

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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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Medium Neutral Citation:	R v Butt [2021] NSWDC 807
Hearing dates:	5 November 2021
Date of orders:	5 November 2021
Decision date:	05 November 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Use carriage service to groom under 16 years for sex: Sentenced to a term of imprisonment of 1 year 6 months. Use carriage service to groom under 16 years for sex: Sentenced to a term of imprisonment of 1 year 4 months. Total Sentence - Release at the expiration of 10 months upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914 (Cth)
Catchwords:	CRIME – Use carriage service to groom under 16 years for sex SENTENCING - Relevant factors on sentence - cybersex offences - age disparity between offender and victims - victim impact - guilty plea - committed while on ICO
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	Adamson v R (2015) 47 VR 268 Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Meadows v R [2017] VSC 290 R v Engein [2014] QCA 313 R v Nahlous [2013] NSWCC 90 R v Thompson (2000) 49 NSWLR 383 R v Whiteman [2021] NSWDC 557 Rampley v R [2010] NSWCCA 293 Stanton v R [2021] NSWCCA 123
Texts Cited:	Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, (2017) Vol 3 Sentencing, Stockdale and Devlin (1987)
Category:	Sentence
Parties:	Jay Butt (the offender) Commonwealth Director of Public Prosecutions
Representation:	Counsel: Mr R Steward (for the offender) Solicitors: Legal Aid NSW (for the offender) Mr J Inan (for Commonwealth Director of Public Prosecutions)
File Number(s):	2021/00006218
Publication restriction:	Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a child victim. Identifying information has been removed from this version of the judgment to comply with the statute. Pseudonyms have been used for the names of the children and their online avatar names or icons/representative symbols.