Butler v Police - [2024] NZHC 3994

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…

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.

Keep reading for free

Create a free CaseChat account to read Butler v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 3994
Decision Date: 20 December 2024

CaseChat Overview and Summary

Lance Butler appeals his sentence of one year and one month’s imprisonment, with concurrent sentences for theft, unlawful taking of a motor vehicle, and failure to answer District Court bail. The primary legal issues the Court was required to decide were whether the starting point adopted by the Judge was too high, if the discount given for personal mitigating factors was adequate, and whether an alternative sentence to imprisonment was appropriate. The starting point adopted by the Judge was considered appropriate, as it was not wholly out of proportion to the gravity of the overall offending. The Court found that there was no sound basis to warrant a further discount for personal mitigating factors, such as rehabilitation efforts and the impact on his children, as there was insufficient evidence to support such a discount. The Court also determined that the Judge correctly identified the offending as serious and that imprisonment, with leave to apply to have the sentence commuted to home detention, was the least restrictive outcome that would achieve the purposes of the Sentencing Act. The only error found was in the amount of reparation ordered, which was corrected on appeal.

The appeal is dismissed in all respects except for the reparation amount, which is corrected to $732. The sentence of one year and one month’s imprisonment, with concurrent sentences for the other charges, is confirmed.

Orders