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,…

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 Butterworth

Details

AGLC: R v Butterworth [2013] NZHC 616
Case: [2013] NZHC 616
Decision Date: 27 March 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Rotorua Registry, the case of R v Butterworth involved the defendant, Carl James Butterworth, who pleaded guilty to a charge of sexual conduct with a young person under 16 years of age. The relationship between Butterworth and the victim, SW, was complex, with Butterworth having a prior relationship with SW's mother and a close familial bond with SW and her family. The court heard that the offending began when SW was 13 years old, and it continued for almost a year, involving multiple instances of sexual activity, manipulation, and abuse of trust.

The legal issues before the court were to determine the appropriate starting point for Butterworth's sentence and whether any personal factors warranted an adjustment to that starting point. The court had to consider the seriousness of the offending, including the age discrepancy between the parties, the targeting and premeditation involved, the frequency of the sexual activity, the emotional manipulation exerted on the victim, and the abuse of trust inherent in the relationship. Additionally, the court needed to evaluate the impact of Butterworth's guilty plea, his mental health status, and his criminal history to determine if any discounts were applicable.

The court, Brewer J, determined that a starting point of at least five years' imprisonment was justified, given the significant factors of the case. The court found Butterworth's manipulation and emotional control over the young victim to be particularly egregious. Despite acknowledging Butterworth's guilty plea and his mental health issues, the court concluded that these factors did not warrant a full reduction in sentence. Instead, the court applied a 25% discount for the guilty plea and Butterworth's mental health, resulting in a final sentence of three years and nine months' imprisonment. The court also issued a three strikes warning to Butterworth, highlighting the severe consequences of any future qualifying convictions.

The final orders of the court were that Butterworth be sentenced to three years and nine months' imprisonment on the first count, with a warning issued regarding the three strikes law. On the second count, Butterworth was discharged as the Crown offered no evidence.

Orders