Butler v The Queen - [2019] NZCA 65

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA474/2018
[2019] NZCA 65

BETWEEN	SHAUN THOMAS BISHOP BUTLER Appellant
AND	THE QUEEN Respondent

Hearing:	11 February 2019
Court:	Miller, Simon France and Peters JJ
Counsel:	T M Cooper and ILM Archibald for Appellant BCL Charmley for Respondent
Judgment:	22 March 2019 at 2.00 pm

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

BThe sentence of 15 months’ imprisonment on charge one is quashed, and in its place, we impose a sentence of four months’ imprisonment.
CThe other sentences are unchanged.
DThe effect is a final overall sentence of two years and seven months’ imprisonment.

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REASONS OF THE COURT

(Given by Simon France J)

Mr Butler appeals an overall sentence of three years and six months’ imprisonment imposed for serious harassment offending against two women.[1] The focus of the appeal is on the credit given for various mitigating factors, but it is also submitted that imposing cumulative sentences unadjusted for totality has led to a manifestly excessive sentence.

Facts

[1]R v Butler [2018] NZDC 16985.

Mr Butler was in brief relationships with the women — with the first complainant during the period May 2011 to October 2011; and with the second complainant during the period November 2012 to May 2013. It seems the conclusion of each relationship left him feeling rejected and, on each occasion, he thereafter harassed the women for a period. The victim impact statements make clear the significant ongoing emotional impact the offending has had on the women. It has affected their lives well beyond the actual period of the offending.
No issue is taken with the Judge’s summary of the offending, which we adopt:
[3] As far as the first complainant, you engaged in a series of acts against her clearly designed to harass her and extending between July 2011 to March 2012. They included repetitive and abusive phone calls, text and voice messages, and threats to rape her purporting to be from another person. You spread untruths and rumours about her sexual relationship within the work environment. You made a formal complaint to her employer. You blocked friends from her Facebook account. You changed her Facebook name to a sexually explicit and offensive one, which she was unable to remove for some time. You stole important personal and business documents and deliberately destroyed photography equipment which you knew she needed for professional work the day afterward.
[4] Matters which contributed to the harassment of her were:
(a)Entry into her home, purportedly to check for semen in her underwear, advising her of you doing that, and frightening texts pretending to be another person.
(b)Repeated threats to publish naked photographs of her in conjunction with an award‑winning photograph.
(c)Repetitive abuse of name calling, silence and suggestions that you knew what she was doing, when she understood you were out of town.
(d)Sitting beneath her bedroom window at night and communicating with her about personal and intimate matters, using…

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 Butler v The Queen

Details

AGLC: Butler v The Queen [2019] NZCA 65
Case: [2019] NZCA 65
Decision Date: 22 March 2019 at 2.00 pm

CaseChat Overview and Summary

The appeal in Butler v The Queen involves an appeal by the appellant, Shaun Thomas Bishop Butler, against his sentence for serious harassment offences against two women. The original sentence imposed was three years and six months' imprisonment, but the appellant argues that the credit given for mitigating factors was insufficient, and that the cumulative sentences unadjusted for totality resulted in a manifestly excessive sentence. The appeal was heard by Miller, Simon France, and Peters JJ. The key legal issues addressed were whether the sentence was excessive and whether sufficient credit was given for the mitigating factors, including the appellant's voluntary return to New Zealand to face the charges. The court found that the sentence was excessive and that insufficient credit was given for the mitigating factors. The court reduced the combined starting point by seven months and applied a further 10% discount for the appellant's voluntary return. The net effect was a reduction of 11 months to the existing sentence, resulting in a final overall sentence of two years and seven months' imprisonment. The court quashed the sentence of 15 months imposed for the harassment of the first complainant and imposed a sentence of four months' imprisonment instead. All other sentences remained unchanged.

Orders