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 1. 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. 2. 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 that appropriate recognition should be made by such reductions of sentence for a person not exercising their right to trial, because giving evidence in court is a particularly stressful experience: R v Thompson (2000) 49 NSWLR 383 at [3]. Agreed facts 1. There are agreed facts before the Court, which include the relevant text messages. 2. At the relevant time the offender was between 36 and 37 years old. In January 2020 he was communicating with the daughter of a close friend via Snapchat. The messages included inappropriate comments about the complainant's body, and comments of a sexualised nature. He promised to provide for the child saying, "I'll buy you whatever you want." He mentions buying sexy underwear; an offer she declined. The communications were clearly intended to introduce the child to sexualised conversations and induce the child to spend time with him alone. At the relevant time the child was 12 years old. 3. There seems to be a gap in the offending until December of 2020 but then, on two occasions, there were similar type conversations involving money and suggestions of inappropriate behaviour. 4. In December 2020 Butt also sent SMSs to a friend of the other complainant. She was 13 at the time. He made comments about; what he might do to her, her body and how cute and sexy she was. Again, the comments were sexualised and were between a 37 year old man and a 13 year old child. 5. The offender was arrested on 8 January 2021. He has been in custody ever since. His phone was seized. Objective seriousness 1. I must assess the objective seriousness of the offences, noting that the maximum penalties indicate how seriously Parliament on behalf of the community views such offences. I must look at the number and content of the messages. Here, relative to many such matters that come before the Court, they were low in number and did not have graphic content; which is sometimes extreme. The age of the recipients is particularly important, so too is the age disparity between a 37 year old man and 12 or 13 year old girls. 2. Both offences, particularly with the first complainant involved inducements being offered or bribery. So far as the first complainant is concerned the offender exploited the closeness of a pre-existing friendship. I do not underestimate the breach of trust involved, although there are more serious examples of this sort of behaviour: see R v Whiteman [2021] NSWDC 557 and the cases to which I refer later. 3. Criminal Code offences, such, as those breached here have a fundamental premise as its basis; every act involving attempted sexual exploitation or actual exploitation of a child is serious, and that includes communications using carriage services. It is well‑recognised that such offences can have profound and deleterious effects on the complainants for many years, if not the whole of their lives: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3; Stanton v R [2021] NSWCCA 123.The guidance offered by the respective maximum penalties makes that clear. 4. The harm done to victims of carriage services offences, sometimes called cybersex offenders, can be no less serious than actual physical contact with a child. The internet and text communications on mobile phones are a highly effective mechanism through which to exploit and attempt to sexualise vulnerable children who often have unsupervised access to carriage services and phones: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [89]. Modern communication technology allows those who wish to exploit children's curiosity and vulnerability to trick and persuade them into adult behaviour, which is clearly inappropriate. 5. In Adamson v R (2015) 47 VR 268, it was said: '"The legislature, in enacting the provisions prohibiting the use of a carriage service to engage in sexual activity with a child, sought to implement society's detestation of the practice of encouraging children to engage in inappropriate sexual behaviour, and to protect the child from immature decisions;" at [27]. 1. So far as the second count is concerned, the increase in the maximum penalty must be take into account. The High Court in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 said: "Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted the maximum sentence available may in some cases be a matter of great relevance." At [30] 1. The joint judgment cited a text Sentencing, by Stockdale and Devlin (1987), where it was said a change in a maximum sentence by Parliament will sometimes be helpful, where it is thought that the Parliament regarded the previous penalties as inadequate. Victim Impact 1. Although relative to many matters dealt with in this Court, these matters are relatively low on the scheme of objective seriousness, these offences are presumed to have an impact on each complainant. While the absence of a Victim Impact Statement does not in any way mitigate, where there is one a court must take it into account. 2. I heard from the first complainant this morning. She told me of the depression, anxiety and loss of confidence she suffered as a result of this offending. She told me how she would cry every day, and that she still has lost a lot of trust, particularly for men and male authority figures. Tragically what is set out in that statement is all too common a response to these matters. Record 1. This is the first sexual offence which brings Mr Butt before the Court. But when he committed these offences, he was on two Intensive Corrections Orders for domestic violence related and dishonesty type offences. As a consequence of his arrest and having his bail refused those Intensive Corrections Orders were revoked and he served those sentences until 26 October 2021. On an ICO 1. When he entered each of those Intensive Corrections Orders (ICOs) he promised the Court that he would be of good behaviour and not commit further offences. It is clear from all the material before me that one of the reasons why the ICOs were imposed was to give him an opportunity to deal with an underlying drug abuse problem which was still present when these offences occurred. 2. Drug use does not and cannot excuse any criminal activity. If he had kept the promise he made to the Court when the ICOs were entered and taken the assistance offered him it is possible that these offences may not have occurred. 3. The revocation of an ICO does not mean a person must serve the balance of the ICO in custody. The ICO regime allows for the order to be reinstated. Here those orders could not be reinstated because he was bail refused for the current matters. The Commonwealth Director submits I should commence this sentence on 26 October, the last date of his ICO. However, the principle of totality, and the fact that had it not been for his arrest and being bail refused for this matter he may have had his ICOs reinstated, mean that I can and will backdate this sentence for a period. But I do not intend to backdate to when he first went into custody. I must allow for some appropriate punishment for the matters where he was serving the ICO. In doing so I have to be careful not to double count because I have also to increase the appropriate sentences because each offence was committed in breach of those orders. 4. I propose to commence the sentences on 8 May 2021. Subjective case 1. The subjective case for the offender is set out in a comprehensive report of Mr Jones, psychologist. I have been given very little information about his childhood. There was the loss of a brother who died when they were both young, and what appears to be a longstanding problem with the use and abuse of illicit drugs; which is also reflected in the criminal record which is before me. 2. His family, particularly his mother, still stick by him and will supply some prosocial support. He reports being an active child and denied any trauma, physical abuse during childhood and adolescence. He been in number of intimate relationships and at times has had appropriate interaction with the children of partners. 3. There is nothing in the material before me to indicate why these offences occurred. He denied to his psychologist that there was any sexual attraction to children and blamed everything on his use of the drug Xanax, and his long term drug problems with methylamphetamine, Xanax, cannabis and alcohol. 4. Butt told Mr Jones that he had no memory of sending the messages and he denied any sexual attraction to the children. Mr Jones did not take that comments at face value. He concludes (at 4.2) that Butt's offending behaviour - the messages themselves and their distinctive sexual themes – make it is difficult to accept he does not have a sexual attraction towards adolescent girls. I agree with that assessment. 5. Mr Jones then concludes, and again there is no need to doubt it, that the extent of that attraction may not meet the criteria for paraphilia, given his age and antecedents when this offending occurred. That seems, on balance, a reasonable conclusion. 6. Mr Jones concludes that the offender has an amphetamine use disorder, and what he describes as an anxiolytic use disorder in early remission. He does however conclude that the offending itself is suggestive of a paraphilic sexual orientation, and he recommends treatment to which I will refer. 7. There appears to be very little insight shown into his offending behaviour, nor acceptance of responsibility apart from the practical measures iof the guilty plea But as Mr Inan who appears for the Commonwealth Director says correctly, there was a strong Crown case. No particular remorse has been shown and no insight shown. It is clear from all the material before me that though he denies it, this offence was committed with for sexual gratification. 8. There are two victims. The matter has to be accumulated in part on the Intensive Correction Orders that were breached. The Commonwealth Parliament's direction to judges in s 19 (5) Crimes Act 1914 (Cth) requiring accumulation of such sentences does not apply. 9. I have regard to other cases, and Mr Steward and Mr Inan have taken me to them. I will have regard to the guidance offered by other courts and other cases. In his written submissions Mr Inan took me to Meadows v R [2017] VSC 290; R v Engein [2014] QCA 313; R v Nahlous [2013] NSWCC 90; Rampley v R [2010] NSWCCA 293. There should be consistent application of principle. But every offender and every offence is individual, and sentencing is of by its nature involves discretionary judgment. 10. I must have regard to the matters set out in s 16A of the Crimes Act 1914 (Cth). It is accepted by Mr Steward and pressed by Mr Inan that only a custodial sentence should be imposed. I must have regard to s 16A(2AAA). Here it is clear that the community will be protected if a period of these sentence be served in the community so the offender can receive as much help as he possibly can so far as; rehabilitation, counselling and therapy is concerned. He managed to go 37 years without offending of a sexual nature. His problems could be assisted by appropriate treatment. It would seem to me that dealing with his drug problem and potential alcohol problem would be protective of future offending. Synthesis 1. Ultimately, a sentence must attempt by its severity to deter others and extract a degree of retribution. A sentence must reflect the community's strong disapproval for offending against children in a sexual manner, and importantly, attempt to vindicate the dignity of each victim. The sentence should also be structured to protect the vulnerable against repetition of the offending; because Mr Butt must be released back into the community. 2. I thank both complainants for coming forward. There is no blame on them for interacting with Butt in their text messages, both sensibly responded and neither engaged directly with him. I thank them for their assistance to the course of justice. Orders 1. The formal orders of the Court are that in relation to each matter you are convicted. The sentences have been reduced by 25% for the reasons outlined. Sequence 7 - Use carriage service to groom under 16 years for sex 1. The first sentence will commence on 8 May 2021. You are convicted and sentenced to a term of imprisonment of one year and six months without hard labour, to commence on 8 May 2021, expire on 7 November 2022. Sequence 9 - Use carriage service to groom under 16 years for sex 1. So far as the second matter is concerned, although it carries a greater maximum penalty, it is not as objectively as serious as the first. 2. You are convicted and sentenced to a term of imprisonment of one year and four months without hard labour to commence on 8 December 2021, expire on 7 March 2023. 3. Total sentence 1 years 10 months. I direct that you be released at the expiration of ten months of your sentence which will be 7 March 2022 upon you entering into a recognisance pursuant to s 21B of the Crimes Act yourself in the sum of $400 for a period of 12 months with the following conditions: 1. Report to Community Services NSW on your release from custody. 2. Accept the supervision and guidance of an officer of Community Services NSW and obey all reasonable directions particularly in regard to: 3. Psychotherapy to manage his symptoms of anxiety & depression 4. Psychotherapy to address any underlying sexual attraction to adolescent children 5. Drug relapse prevention programs 6. Monitor illicit drug abstinence 7. Regular drug urinalysis 8. Engage in drug rehabilitation programs 9. To appear to receive sentence if called upon so to do at any time in respect of any breach within the said period. Forfeiture order 1. I make a forfeiture order of the blue Realme mobile phone, with memory card (X0003924615). s 23ZD Crimes Act 1914 2. The effect of my order Mr Butt is that you will be released on 7 March 2022. The sentence is partly cumulative one on the other, and on the breached the ICO. On your release on 7 March, you should contact Community Corrections and engaged in the supervision plan that Mr Jones has recommended. You will be on a bond effectively for 12 months. If you fail to meet the conditions of your bond you could be returned to custody. Mr Steward and Ms Fennell will explain it further. 3. AUDIO VISUAL LINK CONCLUDED AT 12.07PM ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2022