R v Butterworth

[2013] NZHC 616

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-087-2236 [2013] NZHC 616

THE QUEEN

v

CARL JAMES BUTTERWORTH

Charge:          Sexual conduct with young person under 16 years (representative) Plea:        Guilty

Counsel:         SA Christensen for Crown

GR Tomlinson for Prisoner

Sentenced:     27 March 2013

3 years 9 months’ imprisonment

SENTENCING NOTES OF BREWER J

SOLICITORS

Ronayne Hollister-Jones Lellman (Tauranga) for Crown

Gowing & Co (Whakatane) for Prisoner

R V BUTTERWORTH HC ROT CRI-2011-087-2236 [27 March 2013]

Introduction

[1]      Mr Butterworth, you are being sentenced today having pleaded guilty to one representative charge of sexual connection with a young girl under 16 years of age. This offence carries a maximum penalty of 10 years’ imprisonment.

Facts

[2]      You and your family had a close relationship with the victim, who I will refer to as SW. You also had a close relationship with your victim's family. In fact you and SW's mother were previously in a relationship and had a child together, SW's half brother. You eventually separated, going on to start families with other partners. It became common practice for SW and her siblings to stay at your house in your care and for your children to stay at SW's home in the care of either of her parents.

[3]      In August 2010 SW was 13 years old and you were aged 44. You were with her at her home and you were upset. You were crying and you told SW that you did not want her to be involved with anyone else sexually. You then told her you were going to kill yourself. SW was concerned that this suicide plan would be put into effect and she agreed to be with you. You then proceeded to kiss and touch her before she asked you to stop.

[4]      Following this a full sexual relationship developed between you and SW and continued for almost a year. You would often pick SW up from the bus stop where she would normally catch the bus to school. You would then take her to the beach in order to have full sexual intercourse with her and she would perform oral sex on you. This meant SW would regularly miss the first few sessions of school.

[5]      SW became infatuated with you and you would often tell her that you were going to kill yourself, sometimes calling her by telephone to say goodbye. There are numerous occasions on which you were meant to be supervising SW as an adult but instead you engaged in sexual activity with her. As this is a representative charge, I will only highlight the more serious occasions of offending.

[6]      On one occasion you had intercourse with her each night during a one week stay in a tent whilst you were meant to be supervising her and her siblings. Her siblings were in the adjoining room of the tent. On another occasion, after SW's mother had miscarried, you attempted to have intercourse with SW on the evening of the funeral. She refused and you insisted she make it up to you. You then had intercourse with her later that night whilst your wife and one of SW's brothers slept in the same room.

[7]      The final occasion of offending occurred on 12 June 2011 when you took SW with you to a forest. You attempted to have intercourse with her and then had her perform oral sex on you. You then moved the van in order to be less visible to passers by. You attempted to gas yourself and SW in the car but upon you falling unconscious SW left the van and cut the hose pipes. She then called her father and this led to your sexual offending coming out into the open.

Approach to sentencing

[8]      There are two steps I have to take in your sentencing. The first step is to decide the starting point for your term of imprisonment. I do that by looking at the offending itself. I look at what you did and how that relates to other cases where similar offending occurred. I also consider the relevant purposes and principles of sentencing which Parliament has set out in the Sentencing Act. From that analysis I fix the starting point for your sentence. The second step is to consider whether the starting  point  should  be  increased  or  reduced  by  factors  personal  to  you.  For example, the fact that you pleaded guilty to the charge will entitle you to a discount.

Starting point

[9]      Ms Christiansen for the Crown submits that the starting point should be four and a half years - five years imprisonment. She relies on a case decided in the Court of Appeal in 2010.[1] Your lawyer submits that the starting point should be four years’

imprisonment.

[1] R v Johnson [2010] NZCA 168.

[10]     I have decided that a starting point of at least five years is justified in your case. I take into account, firstly, for offending like this, deterrence and denunciation must be emphasised. You must be held accountable for the harm you have done to your victim and to the community.

[11]     Secondly, the following specific factors.

Age discrepancy

[12]     You were 31 years older than SW when this started. She was only 13 years old. I think her age is a factor which adds to the seriousness of this aspect.

Targeting and premeditation

[13]     I accept what your lawyer Mr Tomlinson says, that there is no evidence that in a predatory way you set out to seduce your victim. But the first occasion on which you approached her sexually does smack of at least premeditation. Thereafter you were certainly in a situation of premeditation with your offending. For example, meeting SW before school for sex and seeking her out at family gatherings.

Frequency

[14]     You had frequent full penetrative sex over a period of 11 months. You would be persistent even when your victim was reluctant.

Emotional manipulation

[15]     This is one of the most significant factors I take into account in setting the starting point. Your manipulation of this 13 year old girl was present at the beginning of the offending when you threatened suicide because you did not want anyone else to be with her sexually. You continued to manipulate her after that, frequently using the threat of suicide. Later you used comments about how you were finding younger nieces attractive and the victim's younger sister also. The emotional control you established over this young girl is shown by the incident in the Matahina Forest in which she joined you effectively in a suicide pact.

Abuse of trust

[16]     This is self evident in this case. The victim's father in his victim impact statement makes very clear how close the relationship was between your family and his family. He says that you were one of the very few people he trusted to have care of his children.

The effects of the offending on the victim

[17]     SW's parents have completed victim impact statements on her behalf. Your offending has had considerable emotional impact on your victim and on her entire family. Your  victim  has  ongoing  psychological  issues.  She  has  been  prescribed medication by a psychiatrist. She has been unable to cope with school. She suffers from panic attacks. For months she slept in her parents' room because she kept having nightmares and was petrified you would come to kill her if she ever had a boyfriend.

Personal factors

[18]     I turn now to the factors personal to you. There are no factors that would require an increase on the starting point. So far as factors that might reduce the start point are concerned, I start by noting that I cannot give you credit for remorse. You have none. You deny the offending and you blame your victim. I cannot give you credit  for  good  character.  You  have  previous  convictions  which  deny  you  that benefit.

[19]     You have an unfortunate background. This is set out in a psychiatric report prepared for the assistance of the Court. I will not go into detail except to note that you yourself were physically and sexually abused as a boy. You have been diagnosed with post traumatic stress disorder as a result of this. You have a major depressive disorder which is being treated with anti depressants.

[20]   You pleaded guilty at your third Court appearance. That followed the amendment of the indictment from eight counts particularising your sexual contact

with the victim to one count. The Crown also agreed to offer no evidence on the count relating to the attempted suicide of your victim. It also followed the disclosure by the police of compelling evidence against you, being the images found on your cell phone.

[21]     In my view you are entitled to a discount for your plea of guilty for the reasons explained by Mr Tomlinson a short time ago. However, you are not entitled to the full 25 per cent which is available for a guilty plea at the first reasonable opportunity.

[22]     But I think that you should also be given some discount to account for your mental health state. It is not that your mental health caused you to offend, or even influenced you to offend. But the theme of suicide in your depressed state does feature in your offending. Accordingly I am going to give you a 25 per cent discount to take account of this factor but, more particularly, your plea of guilty. That results in a sentence of three years and nine months' imprisonment.

[23]     I am required to stand back and consider that sentence against the totality of your offending. Overall I am satisfied that a sentence of three years and nine months adequately reflects your culpability. I say that not because I think that a sentence of three years and nine months will make up for what you did. I do not say that a sentence of three years and nine months will make everything okay for your victim and her family. Of course it will not. My job as a Judge is to respond to what you did within the law that binds me and it is within the law that binds me that I come to this sentence.

Sentence

[24]     Mr Butterworth on count one you are sentenced to a term of imprisonment of three years and nine months' imprisonment. On count two the Crown offers no evidence and you are discharged on that count.

[25]     The law requires me now to give you what is known as a three strikes warning. Given your convictions for sexually offending against the victim, you are

now subject to the three strikes law. I am now going to give you a warning of the consequences of another qualifying conviction. You will also be given a written notice outlining these consequences. It lists the qualifying offences. If you are convicted of any qualifying offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[26]     I know that that warning, which I am required by law to give you, will mean very little to you as you stand there in the dock. You will have it in writing. It essentially means that any future offending by you on a qualifying offence will result in very serious repercussions for you indeed.

[27]     You may stand down.

Brewer J