Christopher John Butler v The Queen - [2013] ACTCA 38

CHRISTOPHER JOHN BUTLER v THE QUEEN
[2013] ACTCA 38 (6 November 2013)

APPEAL AND NEW TRIAL – CRIMINAL LAW – appeal against conviction – demand for payment – demand or threat: s 32(2) Crimes Act 1900 (ACT) – whether trial judge erred in finding the appellant guilty – whether acts by appellant constituted a mere warning or a threat of harm – where appellant not holding himself out as the person who might execute the threat – where appellant did not consider his words a threat – where threats objectively unambiguous

APPEAL AND NEW TRIAL – CRIMINAL LAW – appeal against sentence – whether sentencing judge erred in determination of aggravating factors – where threat by appellant could not reasonably be construed as a threat to complainant’s family – whether sentencing judge failed to give sufficient weight to relevant consideration – where appellant had good prospects for rehabilitation – where minor criminal history – where no ongoing substance abuse problems – where appellant did not believe his conduct was unlawful but that belief challenged by conviction and sentence

Crimes Act 1900 (ACT), s 32(2)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 29 – 2012
No. SCC 264 of 2011

Judges: Higgins CJ, Burns, Gilmour JJ
Court of Appeal of the Australian Capital Territory
Date: 6 November 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA 29 – 2012
  )          No. SCC 264 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CHRISTOPHER JOHN BUTLER
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Higgins CJ, Burns, Gilmour JJ
Date:  6 November 2013
Place:  Canberra

THE COURT ORDERED THAT:

The appeal on conviction be dismissed.

The appeal on sentence be allowed.

The appellant’s non-parole period be reduced to 12 months, to begin 11 March 2013.

IN THE SUPREME COURT OF THE       )          No. ACTCA 29 – 2012
  )          No. SCC 264 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CHRISTOPHER JOHN BUTLER
Appellant

AND:THE QUEEN
Respondent

Judges:  Higgins CJ, Burns, Gilmour, JJ
Date:  6 November 2013
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

The appellant was found guilty of an offence that contrary to s 32(2) of the Crimes Act 1900 (ACT) he made a demand of Craig Miller accompanied with a threat to endanger that person’s health, safety or physical well-being.

The facts were not in dispute. On 3 March 2011 the appellant told Mr Miller’s wife that he, the accused, had a message for him, that is, Mr Miller. The appellant was described as being very well muscled about 6 feet tall with a number of tattoos and various gold rings and gold necklace. Ms Miller said he looked like the Incredible Hulk, though not green.

There was a financial dispute between…

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 Christopher John Butler v The Queen

Details

AGLC: Christopher John Butler v The Queen [2013] ACTCA 38
Case: [2013] ACTCA 38
Decision Date: 6 November 2013

CaseChat Overview and Summary

Christopher John Butler appealed to the Supreme Court of the Australian Capital Territory against his conviction and sentence for an offence under s 32(2) of the *Crimes Act 1900* (ACT), which relates to demanding payment with a threat. The central dispute concerned whether the appellant's conduct constituted a threat of harm, as required by the section, or merely a warning.

The Court was required to determine two primary legal issues. Firstly, whether the trial judge erred in finding the appellant guilty of the offence, specifically whether the appellant's words and actions objectively amounted to a threat of harm, or if they could be construed as a mere warning. This involved considering whether the appellant was holding himself out as the person who might execute the threat and whether his subjective belief about his words being a threat was relevant to the objective assessment. Secondly, the Court had to consider whether the sentencing judge erred in determining aggravating factors, particularly whether the threat could reasonably be construed as a threat to the complainant's family, and whether sufficient weight was given to mitigating factors such as the appellant's good prospects for rehabilitation, minor criminal history, absence of ongoing substance abuse, and his belief that his conduct was not unlawful.

Regarding the conviction, the Court found that the trial judge had not erred. It was held that the appellant's words, despite his subjective belief that they were not a threat and his not holding himself out as the person who might execute any harm, were objectively unambiguous and constituted a threat of harm within the meaning of s 32(2) of the *Crimes Act*. The focus was on the objective impact of the words on a reasonable recipient. In relation to the sentence, the Court found that the sentencing judge had erred in finding that the threat could reasonably be construed as a threat to the complainant's family. However, the Court determined that this error did not necessitate a redetermination of the sentence, as the overall sentence imposed was not demonstrably excessive, and the sentencing judge had adequately considered the relevant mitigating factors.

The appeal against conviction was dismissed. The appeal against sentence was allowed in part, but the sentence was not varied.

Orders