Butler v Police
[2024] NZHC 3994
•20 December 2024
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2024-416-21
[2024] NZHC 3994
BETWEEN LANCE BUTLER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 December 2024 Counsel:
A M Simperingham for Appellant D W Walker for Respondent
Judgment:
20 December 2024
JUDGMENT OF McQUEEN J
[1] Mr Lance Butler appeals his sentence of one year and one month’s imprisonment (with concurrent sentences totalling eight months’ imprisonment) in respect of:
(a)one count of theft of an animal (over $1,000);1
(b)one count of unlawfully taking a motor vehicle;2 and
(c)two counts of failure to answer District Court bail.3
1 Crimes Act 1961, ss 221 and 223(b): maximum penalty seven years’ imprisonment.
2 Section 226(1): maximum penalty seven years’ imprisonment.
3 Bail Act 2000, s 38: maximum penalty one year imprisonment or a fine not exceeding $2,000.
BUTLER v NZ POLICE [2024] NZHC 3994 [20 December 2024]
The offending
Unlawful taking of the motor vehicle
[2] On 15 November 2023 at about 9.00 am Mr Butler parked his vehicle across the road from the victim’s address in Ruatōria. Mr Butler approached the workshop part of the address, entered the sleepout area, and picked up the keys to the victim’s vehicle. Mr Butler drove the vehicle away from the address. Mr Butler returned to the address later with an associate, intending to recover his vehicle from outside the address. A friend of the victim stopped Mr Butler and his associate and took Mr Butler’s keys. The vehicle was later recovered from a barn where Mr Butler and his associate had advised it was located.
Theft of the animal
[3] Mr Butler was charged with two co-offenders, Hira Wharepapa and Phillip Roberts.
[4] On 21 November 2023 at about 2.00 pm Mr Butler and Mr Wharepapa went to Mr Roberts’ home address. There, Mr Butler and Mr Wharepapa asked him to help them kill a cattle beast using his partner’s rifle (a .243 calibre Ruger M77 bolt action rifle).
[5] The three offenders and Mr Roberts’ partner travelled to a rural property in Ruatōria. Mr Wharepapa drove the vehicle into a paddock. They located a cattle beast and shot the animal twice. It survived the first two shots, walking off to the side of the paddock, before the offenders shot it again, which was fatal. The Police arrived to find the offenders butchering the animal.
Failure to answer bail
[6] The two charges for failure to answer District Court bail arose from Mr Butler failing without reasonable excuse to attend the Ruatōria District Court as specified in the notice of bail.
[7] The first offence occurred on 31 January 2024; Mr Butler having been released on bail on 26 January 2024. The second offence occurred on 14 August 2024; Mr Butler having been released on bail on 12 June 2024.
Decision under appeal
[8] On 17 October 2024 Judge Couch in the Gisborne District Court observed that although the theft and the taking of a motor vehicle have the same maximum penalty, the lead charge was taking of a motor vehicle.4 The aggravating factors were premeditation (evidenced from Mr Butler’s assertion that he was acting on an undisclosed person’s instructions to take the car) and the taking of the keys from a dwelling house. The Judge accepted that the vehicle was returned relatively quickly and undamaged. He adopted a starting point of eight months’ imprisonment.
[9] In regard to the theft of the animal, the Judge observed that premeditation was again an aggravating feature. Although Mr Butler had a lesser role in this offending than the co-offenders (who respectively drove to and shot the animal), the Judge found Mr Butler was “clearly part of a joint enterprise.” He adopted a starting point of six months’ imprisonment.
[10] The Judge observed that each failure to answer District Court bail charge was significant because Mr Butler remained at large for one month on both occasions. For the charges together, the Judge adopted a starting point of two months’ imprisonment.
[11] The Judge concluded that because all offences were unconnected in time and nature, the starting points on them are properly cumulative. The Judge adopted an adjusted starting point of 16 months’ imprisonment.
[12] There were two aggravating factors personal to Mr Butler. First, his criminal history, comprising 11 previous offences for dishonesty including five for unlawfully taking motor vehicles. The Judge imposed a five per cent uplift for that. Second, Mr Butler’s failure to cooperate in the preparation of the pre-sentence report, which
4 Police v Butler [2024] NZDC 25865.
delayed the matter. The Judge did not impose an uplift for this as Mr Butler was charged for failing to answer bail that day.
[13] The mitigating factor was that Mr Butler pleaded guilty to the charges. The Judge applied a 25 per cent discount for those pleas.
[14] The net end point came to just under 13 months’ imprisonment. While the Judge considered that home detention would be appropriate, he said nothing less restrictive would achieve the purposes of the Sentencing Act 2002, given the seriousness of the offending. No suitable home detention address was available, and the Judge declined to adjourn the sentencing to allow Mr Butler to propose a further address, given the time Mr Butler had already had to do this.
[15] The Judge imposed an end sentence of one year and one month’s imprisonment for the theft of a motor vehicle, with concurrent sentences of six months’ imprisonment for theft of the animal and one month for each failure to answer bail. The Judge granted Mr Butler leave to apply for substitution of sentence.
[16]In addition to the imprisonment sentence, the Judge ordered Mr Butler to pay
$1,098 in reparation for the theft of the animal.
Approach on appeal
[17] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was a material error in the sentence imposed and a different sentence should have been imposed.5 The focus is on the final sentence reached, rather than the process by which it is reached.6 Although s 250 does not use the expression “manifestly excessive”, it is a principle that is well-established in the Court's approach to determining the extent of the error in sentence appeals.7
5 Criminal Procedure Act 2011, s 250(2); Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
6 Ripia v R [2011] NZCA 101 at [15].
7 Tutakangahau v R, above n 5, at [32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]– [140].
Parties’ positions
[18] Mr Simperingham, for Mr Butler, submits the end sentence was manifestly excessive because the overall starting point adopted was too high and inadequate discounts were applied for mitigating factors.
[19] Mr Simperingham submits that the appropriate starting point, adjusted for the totality of the offending, is between 12 to 14 months’ imprisonment. Mr Simperingham submits that Mr Butler should have been afforded a discount of between 10 to 15 per cent for addiction, rehabilitation and the impact a sentence of imprisonment would have on his children. As for the final sentence, Mr Simperingham says that the Judge erred in not considering alternative options to imprisonment, in particular, community work or supervision with special conditions.
[20] Mr Walker, for the Police, submits the end sentence was well within range and in the context of a busy District Court sentencing list, there was no error in the Judge’s consideration of the personal mitigating factors available to Mr Butler. Further, Mr Walker submits it was open to the Judge to determine that imprisonment (with leave to apply for home detention) was the least restrictive outcome in the circumstances, given Mr Butler’s history of breaching court orders and the absence of a suitable home detention address.
[21]Both counsel acknowledge that the correct reparation figure should have been
$732 and invite the Court to correct this on appeal.
Discussion
[22] The issues on appeal therefore relate first to the starting point adopted, and second to the sufficiency of the discount given for personal mitigating factors. There is also the issue of whether an alternative sentence was appropriate in the circumstances. I consider each issue in turn.
Starting point
[23] There is no issue with the starting points for the unlawfully taking a motor vehicle and the theft charge, but Mr Simperingham submits that the two-month starting point for the failure to answer bail was too high. He says that, if viewed in isolation, the failing to answer bail charges would usually result in conviction and discharge or a modest penalty. He says at most one month of imprisonment is warranted.
[24] Mr Simperingham refers to two cases to illustrate that the two-month starting point was excessive. In Te Whata v Police,8 Mr Te Whata was sentenced to two months’ imprisonment for one count of breaching community work and two counts of failing to answer bail. Justice Woodhouse observed that assessing whether the cumulative sentence was manifestly excessive requires the offence to be put into the overall context of the offending. In that case, Mr Te Whata had a history of failure to comply with court orders, conditions of sentencing and release conditions and the Judge concluded that while severe, that sentence was not manifestly excessive. Mr Simperingham submits that Mr Butler’s history is not as extensive as that of Mr Te Whata, and he does not have the charge for breach of community work which Mr Simperingham says is more serious than failing to answer bail. Second, Mr Simperingham refers to Ashford v Police,9 where Mr Ashford faced five charges of failing to appear, for which the High Court adopted a starting point of three months’ imprisonment.
[25] Mr Walker says the starting point of one month’s imprisonment for each count of failing to answer bail is appropriate when viewed in the context that Mr Butler has on two previous occasions been convicted and discharged for failing to answer bail. On two other occasions he has been sentenced to one month’s imprisonment for each charge, also in the context of sentencing for multiple offences. Despite this, Mr Butler continues to disregard his obligation to attend Court. Although Mr Butler’s history of disobeying Court orders and conditions of sentencing is not as severe as in Te Whata v Police, Mr Walker says the punitive sentence is necessary so as not to undermine the Court process.
8 Te Whata v Police HC Auckland CRI-2011-404-145, 1 August 2011.
9 Ashford v Police [2012] NZHC 2758.
[26] In the circumstances, I consider that the one month’s imprisonment for each count of failing to answer bail was within range, especially against the fact that Mr Butler has previous charges for the same offending and because each count followed Mr Butler being at large for one month.
[27] Mr Simperingham further submits that under s 85 of the Sentencing Act 2002 the Court must consider the totality of the offending. The total period of imprisonment must not be wholly out of proportion to the gravity of the overall offending.
[28] Mr Simperingham refers to two cases of greater seriousness of offending in support of his argument that a lower overall starting point should have been imposed for Mr Butler. In Wiparata v Police,10 the High Court upheld an overall starting point of 24 months’ imprisonment for unlawfully taking a vehicle, stolen items valued at
$1,850 and breaching community work. The aggravating factors included premeditation and causing loss to the victims. In Affleck v R,11 the High Court said that a starting point of two years’ imprisonment for unlawfully taking a commercial van and theft offences was in range. The main aggravating factor was that the vehicle was commercial with the potential for a significant gain from the theft of its contents. Mr Simperingham submits that in light of these cases, the combined starting point for Mr Butler should have been between 12 to 14 months’ imprisonment.
[29] On the contrary, Mr Walker submits that Mr Butler’s offending is at least on a par with the seriousness of the cases referred to (Wiparata and Affleck) if not more serious.
[30] There are some similar aggravating features in Wiparata to Mr Butler’s offending. In Wiparata, the offending was premeditated, and it appears that the vehicle which was stolen in central city Dunedin was located later, still in Dunedin and apparently undamaged. That is not too different from Mr Butler’s offending which was premeditated, the vehicle was abandoned undamaged, a short distance from where it was stolen, and the offending was of short duration. However, there are features not present in Wiparata such as the fact Mr Butler entered a premises to take the keys of
10 Wiparata v Police [2016] NZHC 3062.
11 Affleck v R [2015] NZHC 1741.
the vehicle. In addition, in Wiparata the offender stole multiple items from the vehicle to the value of $1600, which is not the case here. I accept that Affleck involves more serious offending, where it concerned a commercial vehicle and there was a high value of items that were taken.
[31] The extent to which these cases assist is to say that a starting point lower than was adopted in those cases may be justified, but not one significantly lower given the common features of the offending. I acknowledge that the Judge did not expressly consider whether the starting point should be adjusted for totality. However, standing back and assessing the starting point as a whole, and in light of the cases referred to me, I consider that a starting point of 16 months’ imprisonment was not wholly out of proportion to the gravity of the overall offending.
[32] Therefore, although the starting point was not expressly adjusted for totality, I am satisfied that there is no error in the starting point from the perspective of totality. I consider that the starting point of 16 months’ imprisonment was within range for the offending overall.
Discounts for personal mitigating factors
[33] Mr Simperingham submits the Judge did not consider the relevance of Mr Butler’s personal circumstances or the content in the Provision of Advice to Courts (PAC) Report. Those mitigating circumstances were said to be that Mr Butler was on a path of rehabilitation. He had relocated to Gisborne to distance himself from anti-social peers and negative influences. He has stopped using methamphetamine (which he began using to cope with his traumatic upbringing) and is motivated to seek treatment to maintain his sobriety. Mr Simperingham submits that the causal connection between addiction and the offending should have been recognised.12
[34] Mr Walker says that the information about moving away from anti-social influences appears to be self-reported, conveyed to the District Court Judge in oral submissions by Mr Butler’s counsel. Without supporting evidence necessary to make a proper assessment of Mr Butler’s efforts, Mr Walker submits that the sentencing
12 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [161].
Judge was not required to apply a discrete discount and the position should be no different on appeal.
[35] There is a lack of evidence pertaining to Mr Butler’s rehabilitation efforts. The PAC report only says that he is motivated to do counselling and any programmes to help him reduce his drug use. This is against the background that he suffers from extreme anxiety and has confirmed that he uses cannabis to help him sleep. Mr Butler is also assessed as at moderate risk of harm from his drug use, and if his use continues then this level of harm may increase. These factors, coupled with the lack of understanding from Mr Butler as to the impact of his offending go some way to explain why the Judge did not apply any discount for personal background factors. Self-reporting under these circumstances is not enough to justify a discrete discount for rehabilitation efforts. I do not consider there was an error by the Judge in not giving a separate discount for rehabilitation efforts.
[36] Mr Simperingham also submits a discount should have been applied13 to recognise the effect of imprisonment on Mr Butler’s children.14 He has three children aged between one and six. Mr Simperingham says that he was actively involved in their upbringing and while in custody, he cannot visit them, which impacts his bond with them. However, Mr Simperingham accepted at the hearing that there is no evidence about the degree of attachment between him and his children or the likely harm that his absence could cause, as was the case in Philip v R.15 While the Court must take the welfare of children into account as part of a defendant’s personal circumstances, I am satisfied that there is no proper basis on which to justify a discount and therefore the Judge did not make an error in this regard.
Conclusion as to sentence
[37] Overall, I consider that there were no material errors in the sentence imposed on Mr Butler. The starting point of 16 months’ imprisonment was within range, including in terms of totality, and there is no sound basis to warrant a further discount
13 By reference to Sentencing Act 2002, s 8(h) and subs (i).
14 Berkland v R, above n 12, at [116]; Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [52]; and
R v Theodore [2018] NZHC 2364 at [39].
15 Philip v R, above n 14 at [53].
for personal mitigating factors. I am satisfied that the end sentence of 13 months’ imprisonment is not manifestly excessive. The remaining question is whether there was an alternative sentence to imprisonment that was appropriate in the circumstances.
Was an alternative sentence appropriate?
[38] Section 8(g) of the Sentencing Act requires that the Court must impose the least restrictive sentence that is appropriate in the circumstances, in accordance with the hierarchy of sentences set out in s 10A of the Act.
[39] Mr Simperingham submits that imprisonment or home detention was not the least restrictive outcome for Mr Butler. Mr Simperingham says that the Judge failed to consider alternative options to imprisonment, such as community work or supervision with special conditions, as identified in the PAC Report.
[40] The PAC report recommended imprisonment. The Judge considered that home detention would be appropriate, and that nothing less restrictive would achieve the purposes of the Sentencing Act. As already mentioned, no address for home detention was canvassed due to lack of engagement from Mr Butler.
[41] The Judge did not consider it appropriate to delay sentencing to allow Mr Butler the opportunity to propose a further address for the purposes of an electronically monitored sentence, noting that he had already had four months to do so and that it was the second sentencing date due to Mr Butler’s failure to cooperate with the PAC report writer. The Judge granted Mr Butler leave to apply to have his sentence commuted to home detention if he can provide a suitable address.
[42] I am satisfied that there is no error in the Judge’s identification of the offending as serious, that home detention was appropriate, and that such a sentence represents the least restrictive outcome that would achieve the purposes of the Sentencing Act. In the circumstances where an address was not available for home detention, I am satisfied that the sentence of 13 months’ imprisonment, with leave to apply to substitute the sentence to one of home detention, is not manifestly excessive.
Reparation
[43] As already noted, counsel are agreed that there was an error in the order for reparation for theft of an animal.
[44] Mr Butler’s co-offender was ordered to pay $732, being half of the valuation of the animal at $1,464. Mr Butler should have been ordered to pay no more than the remaining half, being $732. I am satisfied that the reparation to be paid should be corrected on appeal.
Conclusion
[45] Only to the extent of correcting the sum to be paid by way of reparation does this appeal succeed. Mr Butler is to pay reparation of $732.
[46]In all other respects the appeal is dismissed, and the other sentences confirmed.
McQueen J
Solicitors:
Woodward Chrisp, Gisborne for Appellant Crown Solicitor, Gisborne for Respondent
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