Judge denies appeal
Robert Butler, sentenced on child pornography charges, has been transferred from HMP to the forensic unit of the Waterford hospital
A provincial court judge was right in sentencing Robert Butler to jail for child pornography crimes even though Butler had said he would die by suicide behind bars, an appeal court judge ruled Monday.
Butler, 27, was handed a 12-month prison sentence by Judge Colin Flynn on Nov. 9 — 10 months for possessing child pornography and 12 months for distributing it, with the sentences running concurrently. Butler had pleaded guilty to the charges.
Butler’s lawyer, Stephen Orr, had argued a prison sentence would be a cruel and unusual punishment for Butler and a breach of his rights, given his suicidal ideations.
Under the Criminal Code there’s a mandatory six-month minimum prison sentence for possessing child pornography, and a 12-month minimum prison sentence for distributing it. Orr argued for Flynn to allow Butler to serve his sentence as house arrest.
Flynn disagreed, noting Butler’s psychologist had testified Butler could be successfully treated for his depression. Butler could receive treatment in prison and would also be under better supervision, the judge ruled. He also wrote a letter to the superintendent of Her Majesty’s Penitentiary, asking that Butler be treated right away for his depression and possible suicidal tendencies.
Butler was taken into custody immediately, but filed an appeal of his sentence with the Newfoundland and Labrador Supreme Court and applied to be released until the appeal hearing. He has since been moved from HMP to the forensic unit of the Waterford hospital.
In the appeal application, Orr submitted Flynn was wrong in not allowing his client to serve his sentence as house arrest, given his mental-health issues. He said the judge had focused on deterring other potential criminals instead of considering Butler’s mental-health issues.
On Monday, Justice Gale Welsh found that to be untrue.
“It is clear from his decision that the trial judge understood Mr. Butler’s situation, particularly his distress,” Welsh wrote. “Based on the report and testimony of the psychologist, the judge concluded that Mr. Butler’s mental-health issues related to the prospect of going to prison. The judge explained how those issues could be addressed in the penitentiary.”
Orr said Flynn had no evidence on which to base that, but Welsh shot down that argument, too, noting Flynn had taken the step of writing a letter to the prison and attaching the psychologist’s report.
“Indeed, he has been transferred from the penitentiary to a mental-health facility,” Welsh noted.
“The trial judge considered the aggravating and mitigating circumstances, addressed appropriate ranges for the offences, applied the law and concluded that a fit and proportional sentence was 12 months in prison. He considered the option of a conditional sentence (house arrest) and rejected it, with reasons.”
Welsh denied Butler the right to appeal his sentence.
Butler was arrested four years ago, after RNC officers received information from members of the Toronto Police Service in relation to an investigation. Four images of child pornography found as part of that investigation had been tracked to a computer IP address at the Kilbride home in which Butler was living.
Police seized a laptop from the home and found 110 photos and 16 videos of child pornography, depicting children as young as four years old. Forensic analysis of the computer also revealed search engines had been used to look for sexual images depicting pre-pubescent children in particular. Other searches were made for Japanese animation depicting sexual cartoons, particularly of toddlers and young children.
In addition to downloading the pictures and videos, Butler had downloaded a peer-to-peer software program and used it to upload five of the files. One of the videos was in the process of being downloaded by another user when police discovered it.