Chief Justice considers SOPO and potential error in sentencing in Busto case

The Chief Justice is considering a sexual offences prevention order and whether he has erred in a point of sentencing during the case against a convicted child sexual offender.

The matter is related to Clayton Busto, 43, a former teacher and Scout leader who was convicted of 16 charges relating to child sexual abuse involving four victims, with some offences dating back to 2007.

The Supreme Court convened on Thursday afternoon to consider the sexual offences prevention order (SOPO) and an issue with the sentence which was picked up by the prosecution.

Chief Justice Anthony Dudley said the prosecution had taken the view that the court had erred in its sentencing.

Mr Justice Dudley, who oversaw the trial and handed down the sentence, acknowledged he “may have erred” in law with his sentence in respect of one charge.

The prosecution had highlighted that the charge in question related to one incident of requesting indecent images, whereas Mr Justice Dudley in his sentence had taken more incidents into account.

Mr Justice Dudley said it was possible for him to rescind the three-year sentence in respect of this this count and re-sentence without factoring in the aggravating feature of additional incidents.

Prosecutor Kerrin Drago also outlined the details of a SOPO sought by the Crown, which includes provision that the defendant cannot become a Scout leader, teacher or mentor.

Mr Drago described Busto’s inclination to have a sexual interest in children under 16 years old and how he had used social media as a means to form relationships with his victims.

The prohibition sought by the Crown was that Busto should not be allowed to be in contact with anyone unrelated under the age of 18 years old.

Mr Justice Dudley pointed out that there would have been no criminality in the relationships with those aged 16 and above if it were not for the abuse of trust as Busto was a teacher and Scout leader in these instances.

Mr Justice Dudley said there could be a case where a teacher engages in a relationship with a teenager over the age of 16 in another school resulting in no criminality as there was no abuse of trust.

He added that Busto’s modus operandi was that he groomed the youngsters he abused and that the probation department had assessed him as a moderate risk.

Mr Drago said that the provisions set out in the SOPO were to ensure the safety of the public without unreasonably interfering extent in Busto’s life.

Mr Drago also weighed how long the SOPO should be active for, presenting date ranges from 15 to 20 years, or indefinitely.

He added that if the SOPO was imposed for 20 years this would surpass the number of years in custody and on licence by around nine years, highlighting that there was a continued risk after the defendant leaves custody.

Defence lawyer Christopher Finch said the SOPO put forward by the prosecution was “far too wide, far too long… and far too disproportionate”.

Mr Finch said his client was not a “threat at large” as there was no evidence he had acted in this way while outside of a supervisory role. He questioned why the SOPO should extend wider.

Mr Finch added that although his client accepted he could no longer be in a supervisory role over children, the prosecution could not in his view put forward a SOPO when it did not know “what the world will be like in 10 years’ time”.

“There has to be a necessity, a real risk of harm and the court acting in the defence of society,” Mr Finch said.

The matter was adjourned until Friday morning for Mr Justice Dudley to deliver his decisions.