Child sex offenders’ sentence reduced by a year after initial error

Chief Justice Anthony Dudley reduced a convicted child sex offenders’ sentence by a year after an error was identified and, in the same session in the Supreme Court on Friday, approved a 20-year sexual offences prevention order.

The 14-year sentence originally imposed on Clayton Busto, 43, a former teacher and Scout leader, was reduced to 13 years after it was discovered Mr Justice Dudley had erred in his first sentencing.

Busto was convicted last June of 16 charges relating to child sexual abuse involving four victims, with some offences dating back to 2007, and was sentenced in September.

Separately on Friday, the Supreme Court also confirmed that Busto had applied to appeal his conviction and sentence.

On Friday morning, the Chief Justice re-sentenced Busto after concern about a possible sentencing error was raised by the Crown.

The error related to a three-year sentence for a charge of encouraging child pornography, for which the Chief Justice had mentioned an aggravating factor that Busto had requested pornographic images on multiple instances.

But the charge related solely to a single specific instance and therefore, Mr Justice Dudley found that other instances should not have been factored in as an aggravating feature.

The issue was brought to the court by Prosecutor Kerrin Drago and Mr Justice Dudley commended him for having done so.

“It is an important demonstration of the OCPL’s (Office of Criminal Prosecutions and Litigation) duty to act as prosecutors and not persecutors and of their overriding obligation to ensure that justice is done,” Mr Justice Dudley said.

Mr Justice Dudley rescinded the original three-year sentence on this charge and re-sentenced Busto to two years, reducing his overall sentence to 13 years.

The court can vary or rescind a sentence imposed within a period of 28 days when the court is satisfied that a material error in the sentencing process has been made.

“In my judgment I made an error of law in treating the other occasions on which images were requested as an aggravating feature,” the Chief Justice said.

Mr Justice Dudley then moved on to the matter of the sexual offences prevention order (SOPO), noting that Busto had abused his position as a teacher and Scout leader to access young people for sexual purposes.

A pre-sentence report had concluded Busto represented a moderate risk of harm and Mr Justice Dudley said that he was satisfied that the order was necessary to protect adolescent boys.

He said some of the prohibitions sought by the prosecution were “too widely drawn” as the risk posed by Busto was not one of “violent or opportunistic sexual offending”.

For Mr Justice Dudley, a SOPO is “preventative and not a punishment”.

Mr Justice Dudley accepted that it was “wholly appropriate” to restrict Busto from having electronic communications with boys aged under 18 years, or assuming any role involving him in the position of trust of any male under 18.

The SOPO also outlined that Busto is prohibited from using any platform which automatically deletes messages or activity.

Mr Justice Dudley said these prohibitions were “both necessary and proportionate”.

“The offending in relation to all the victims involved, albeit in varying degrees, grooming through electronic communications,” the Chief Justice said.

“There is in my judgment a real risk that such communications could again provide the means by which you establish relationships with adolescent boys, groom them and ultimately seek to engage in sexual activity with them.”

The SOPO is active as from Friday, October 9 for the next 20 years.

Given that a sentence of 13 years has been imposed, Busto will be eligible for release after nine years and nine months.

Mr Justice Dudley said this will ensure that the prohibitions remain in force for a substantial period after his release, during which time he will be monitored.

Kerrin Drago appeared for the Crown.

Chris Finch represented the defendant.