JULIE Maree Butler v The King - [2023] NZHC 1846

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-92

[2023] NZHC 1846

BETWEEN
JULIE MAREE BUTLER

Appellant

AND

THE KING

Respondent

Hearing: 12 July 2023

Appearances:

G D Fletcher for Appellant

G E R Alloway for Respondent

Judgment:

13 July 2023

JUDGMENT OF MANDER J

This judgment was delivered by me on 13 July 2023 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

BUTLER v R [2023] NZHC 1846 [13 July 2023]

[1]Julie Butler was sentenced to 120 hours’ community service and ordered to pay

$2,336 in reparation,1 after pleading guilty to one charge of intentional damage.2 She was also made subject to a protection order in favour of the victim of her offending, Ms Butler’s ex-partner. Ms Butler appeals the imposition of the protection order.

Facts

[2] Ms Butler and one of the victims of this offending had been in a relationship for some 15 years but separated in 2021. They have two children.

[3] On the morning of 1 January 2022, Ms Butler entered her ex-partner’s home while he was not present. She parked her vehicle inside the garage and closed the door so it could not be seen from the street. She then went through the house and systematically destroyed or damaged almost all the items in the home belonging to her ex-partner and his current partner.

[4] She slashed artwork on the walls, damaged chairs, poured petrol over the victims’ bed and clothing, filled the bath with water and put the victims’ belongings into the water including electronics. She smashed vases, bedside tables, a computer and the ensuite mirror. The only rooms without damage were the children’s. Before leaving the house, she took the hard drive from the home’s CCTV system. She told police she had disposed of the hard drive.

District Court decision

[5] The District Court Judge’s sentencing decision of 10 May 2023 is largely focused on Ms Butler’s application to be discharged without conviction, which was ultimately unsuccessful. It is not challenged on appeal. In relation to the imposition of a protection order, Judge Crosbie stated:

[27] And then there is the matter of a protection order which the complainant seeks. We stood that down momentarily for the Crown to take instructions and that is not opposed. I consider, given the effects that the complainant has said that this has had on him, that it is appropriate to make such an order and a final protection order will be issued in his favour.

1 R v Butler [2023] NZDC 8924.
2 Crimes Act 1961, s 269(2)(a) — maximum penalty seven years’ imprisonment.

Principles on appeal

[6] An appeal against a protection order made at sentencing proceeds as an appeal against sentence under the Criminal Procedure Act 2011.3 It follows that such an appeal will only succeed if the court is satisfied there has been an error in the imposition of the order and that either…

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.

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Details

Case: [2023] NZHC 1846
Decision Date: 13 July 2023

CaseChat Overview and Summary

Julie Butler appeals against the imposition of a protection order made in the District Court against her in favour of her ex-partner, the victim of her offending. The offending involved the intentional and premeditated damage of almost all the items in the victim’s home. The appeal proceeds on the basis that the District Court erred in concluding that the protection order was necessary for the protection of the victim. The appeal is dismissed. The District Court Judge was not wrong to conclude that the imposition of a protection order was necessary. The offending involved an invasion of the victim’s home, the violent destruction of his belongings with a knife and the use of petrol, and the destruction of evidence of her involvement by taking and discarding the CCTV hard drive. The offending has had a considerable effect on the victim. While Ms Butler and the victim will have to continue to have contact and maintain a working relationship in order to parent their children, so there will be continued opportunities for friction. The victim continues to have concerns regarding what Ms Butler could do notwithstanding the steps she has taken to rehabilitate herself, the apparent way she has reconciled herself to the relationship having ended, and her acceptance of her ex-partner’s new relationship. Given these circumstances, I do not consider the District Court Judge was wrong to conclude that there was a reasonable fear of future violence. Because there exists a reasonable fear of future violence, the evidential onus shifts to Ms Butler to show factors that militate against the making of a protection order. The steps she has taken, while commendable, do not discharge the evidential onus on her to demonstrate there is no need for the protection order. While I have concluded that the order presently remains necessary for the protection of the victim, that should not preclude, at some future appropriate time, Ms Butler being able to apply to the Family Court to have the order reviewed.

Orders