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 no such order should have been imposed or one should have been made in different terms.4

The appeal

[7]    On behalf of Ms Butler, Mr Fletcher submitted the District Court Judge had erred in ordering a final protection order because it was not “necessary”,5 and therefore, with the statutory criteria unfulfilled,  he  lacked  jurisdiction  to  do  so. Mr Fletcher points to the following factors that he submitted suggest a final protection order should not have been made:

(a)a year and a half has passed since the offending without further incident;

(b)there was  only  one  instance  of  violence,  which  occurred  when Ms Butler was distressed at seeing her ex-partner with a new romantic partner;

(c)the applicant is not particularly vulnerable and there is no reason to suggest the offending will be repeated as Ms Butler accepts the relationship is over and was willing to engage in a restorative justice process;

(d)Ms Butler pleaded guilty and admitted her wrongdoing;

(e)she is not (or, at least, no longer) “bitter or angry” and wants to “work with [her ex-partner] for the sake of the children”;

3      Sentencing Act 2002, ss 123B and 123H(1).

4      Criminal Procedure Act 2011, s 250(2) and 250(3).

5      Sentencing Act, s 123B(2)(a).

(f)Ms Butler had led a “blemish free lifestyle” before this offending and has not re-offended;

(g)Ms Butler completed the “parenting after separation” course;

(h)Ms Butler is willing to give an undertaking not to commit any more family violence; and

(i)Ms Butler understands that any more violence would result in grave legal consequences.

[8]    Each of these points were re-emphasised by Mr Fletcher in his oral submissions. Essentially, he submitted that Ms Butler has done everything she can to put matters right. She is aware of the grave consequences if there was to be any repeat offending, and there is no longer any reason for the ex-partner to have any concerns or fears of any repetition of this offending.

[9]    In opposition to the appeal, Mr Alloway, for the Crown, submitted the Judge’s decision to make a protection order was correct because the offending involved extensive property damage, was premeditated and represented extreme conduct. It involved the use of a knife and petrol. He says the victim has genuine concerns for his safety. Mr Alloway cites the decision of Holloway v Police where a protection order was imposed where a television was damaged.6 He argues the present offending was considerably more serious than the offending in that case.

Analysis

[10]   A court can order a protection order at sentencing under s 123B of the Sentencing Act 2002. This provision relevantly provides:

123B    Protection order

(1)This section applies if—

(a)an offender is convicted of a family violence offence; and

6      Holloway v Police [2014] NZHC 1626.

(b)there is not currently in force a protection order against the offender made under the Family Violence Act 2018 for the protection of the victim of the offence.

(2)The court may make a protection order against the offender if—

(a)it is satisfied that the making of the order is necessary for the protection of the victim of the offence; and

(b)the victim of the offence does not object to the making of the order.

(3)A protection order may be made under this section in addition to imposing a sentence or making any other order.

…

[11]The requirements for a protection order are:

(a)the offender must be convicted of a family violence offence;

(b)there is not currently in force a protection order against the offender for the protection of the victim;

(c)the victim of the offence does not object to the making of the order; and

(d)the court is satisfied the making of the order is “necessary for the protection of the victim of the offence”.7

[12]Only the last of those requirements is contested by Ms Butler.8

[13]   The evaluation of whether a protection order is necessary for the protection of a victim involves an evaluative enquiry that need not be overly refined.9 The enquiry is of a predictive nature, but past behaviour is to be viewed as the most reliable guide to future conduct.10 An order will likely be made where the offender’s past conduct has led the victim to hold reasonable fears of future violence.11 Particular regard must

7      Sentencing Act, s 123B(2)(a).

8      There initially was some concern that a protection order was already in place at the time of sentencing, but enquiries of the Family Court confirmed there was no pre-existing protection order and therefore no impediment to the sentencing Court making an order for that reason.

9      SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [19] and [22].

10     At [24(a)].

11     Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [37].

be had to the nature and seriousness of the past inflicted violence.12 However, there  is no specific standard of threat required before an order can be made,13 and it does not need to be shown that future violence is likely.14 If there has been past violence and there is a reasonable, subjective fear of future violence, the evidential burden passes to the offender to raise countervailing factors that would weigh against the need for a protection order.15 Ms Butler has endeavoured to do that in this case.

[14]   In his victim impact statement, Ms Butler’s ex-partner referred to having had an amicable relationship with Ms Butler following their separation. However, this has changed since the offending. They only have contact regarding decisions or issues relating to their children. The victim said he experienced problems sleeping and became depressed following the offending. The effect on him was exemplified by the concern he feels about the noises he hears in and around the house.

[15]   He says Ms Butler’s offending shocked him and caused him to feel distressed and fearful of what she might do or be capable of doing in the future. His concerns stem from: the way Ms Butler planned the break in, and took away and disposed of the video footage so he would think someone else was responsible and that he was in danger; the extent of the rampage which made him feel on guard both at his house and away from it because he says he does not know what else Ms Butler is capable of; the fact she used a knife and petrol to cause the damage, which could be deadly; the time and money lost because of the damage; the effect Ms Butler’s actions had on their children as they saw the destruction she caused; and that he believes Ms Butler does not understand the seriousness of her actions and has not apologised to him nor the children.

[16]   In a recent letter submitted by the ex-partner through the court victims advisor, he essentially confirmed that the feelings and views he expressed to the sentencing Court in his victim impact statement still reflect his current concerns. Mr Fletcher, responsibly, had no objection to me receiving this updating information.

12 At [40].

13     Whitehead v Police [2021] NZHC 3421 at [13].

14     Surrey v Surrey, above n 11, at [36].

15     At [43]; and SN v MN, above n 9, at [24(e)].

[17]   In support of the appeal, Mr Fletcher sought to rely on three cases. However, I do not consider they greatly assist his argument. In N v S, where a protection order was not granted, the family violence was psychological abuse where the respondent had referred to the applicant as “a $2 whore” and a “piece of shit” and threatened to tell the parties’ son of what he considered to be marital misconduct.16 This is clearly less serious conduct than the present case.

[18]   In Haroun v Reda, Gordon J summarised the respondent’s conduct in the following way:17

The time span shows that the abuse was sustained and ongoing. Mr Haroun called [the applicant] “dirty”, “stupid”, a “monkey ass”, “bitchy”, a “whore” and “dumb”. He threatened to “commit a crime”, take out his “craziness” on her, take their daughter back to Egypt and remarry, refuse to divorce her, “punish” her and make her “pay” if she took legal action. The written communication evidence shows that whenever [the applicant] responded to Mr Haroun’s messages, she was polite, conciliatory and submissive. The nature of this past conduct indicates a pattern of behaviour and emotional abuse which might be characterised as habitual on Mr Haroun’s part. Financial pressure can be seen to be a sub species of psychological abuse. The behaviour can properly be seen to be “coercive or controlling”. Having reviewed the written communications for myself, I agree with Judge Muir that these communications constituted psychological violence for the purpose of the Act.

[19]   A protection order was granted in this case. It was submitted the violence was more serious in this case. However, while the abuse was ongoing and persistent in that case, I do not consider Ms Butler’s conduct, limited as it was to a single episode, can be viewed as necessarily being less impactful on her victim. I do not consider any useful comparison can be made between the two cases.

[20]   Similarly, the final case Mr Fletcher cited, PK v MN, provides little assistance.18 It is difficult to determine what was the extent of the family violence in this case, as it was agreed by the parties there had been family violence,19 but it was also apparent the Judge on appeal did not accept all of the allegations. These claims included sexual and physical abuse. In the end, the Judge did not grant a protection order because there had been no abuse nor contact for over a year. The respondent

16     N v S [2017] NZCA 50, (2017) 31 FRNZ 198 at [10].

17     Haroun v Reda [2022] NZHC 2199 at [60].

18     PK v MN [2022] NZHC 3488.

19 At [32].

wanted to “get on with his life”, there was no corroboration for some of the accusations, and the likelihood of contact was very low because the parties lived in different cities.20

[21]   The present case is distinguishable. It appears the parties still live in the same city and they still have to interact with one another in order to parent their children together. This offending appears to have been triggered by Ms Butler’s feelings about his new relationship, which remains ongoing. I acknowledge her assurances that she has now moved on with her life. However, there is, in this case, an ongoing dynamic that will have to continue to be managed and so, at least to that extent, the protection order continues to have utility.

[22]   Mr Fletcher, in oral submissions, sought to place reliance on the approach adopted by the Court of Appeal in SM v MN,21 when it observed that it was unlikely a court could rationally refuse to grant a protection order where the behaviour is such as to lead to reasonable fears for safety based on the victim being subjected to a pattern of recent serious domestic violence. He submitted there was no pattern of recent domestic violence in the present case. However, as noted by Mr Alloway, that was a reference to the circumstances of that particular case. I do not read the Court’s observation as excluding other situations, including cases involving single instances of violence, as being incapable of continuing to have such a sufficient impact as to warrant a protection order. It is notable that the Court of Appeal in the same case also held that protection orders are designed not only to protect a person against future violence but the reasonably held fear of violence.22 Such fears can no doubt be engendered by one traumatic incident.

[23]   The central issue that arises for consideration on the appeal is whether this single event, in the absence of any previous family violence either before or since the incident (which was a year and a half ago), gives rise to a reasonable fear of future violence. I consider the answer lies in the nature and impact of Ms Butler’s offending. It involved an invasion of the victim’s home and the violent destruction of his

20     At [57]–[60].

21     SN v MN, above n 9, at [23].

22 At [23].

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. This was targeted offending that has had a considerable effect on Ms Butler’s ex-partner. The long-term impact of such offending ought not be underestimated.

[24]   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. Importantly, as previously noted, 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. While Ms Butler saw the protection order as a barrier to better relations between the parties and their shared parenting of their children, her ex-partner considers its protection assists him in discharging those responsibilities. Given these circumstances, I do not consider the District Court Judge was wrong to conclude that there was a reasonable fear of future violence.

[25]   Because there exists a reasonable fear of future violence, in this case of property damage or  other  psychological  abuse,23  the  evidential  onus  shifts  to  Ms Butler to show factors that militate against the making of a protection order.    Mr Fletcher has pointed to a number of these, including Ms Butler having completed courses, being willing to engage in restorative justice and her wanting to work together with the victim for the benefit of the children. These are commendable steps and laudable intentions, but I do not consider they discharge the evidential onus on her to demonstrate there is no need for the protection order, particularly in light of her ex- partner’s ongoing concerns that are of course rooted in Ms Butler’s past offending.

[26]   Mr Fletcher refers to the possibility of Ms Butler undertaking not to commit family violence, which he says is a commonplace practice in the Family Court. That may be something that has developed in that jurisdiction but a criminal court, when sentencing an offender, is governed by its powers under the Sentencing Act. Arguably, after delivering sentence, other than processes provided by that Act, its jurisdiction

23     Family Violence Act 2018, s 11(1)(c).

ceases. Any steps to enforce such an undertaking would risk blurring the sentencing powers of the Court and undermine the need for finality in criminal proceedings. In any event, the two cases that I have located where that course was adopted as a solution by the High Court or Family Court, notably involved instances where the abuse was limited to a party engaging in abusive messaging and were under the Domestic Violence Act 1995, not the Court’s criminal jurisdiction.24 An undertaking not to send abusive messages may lend itself to inhibiting such behaviour. The violence in this case was much more serious. It constituted criminal conduct from which the victim was entitled to be safe.

[27]   Being satisfied the protection order issued by the District Court was necessary for the protection of the victim, the appeal against its making must be dismissed. However, before concluding, I do acknowledge the concern voiced on behalf of Ms Butler that the protection order remains in force indefinitely. I have concluded that the order presently remains necessary for the protection of her ex-partner. However, there may come a point when the need for the protection order will dissipate should the passage of time and Ms Butler’s conduct over that period demonstrate the order is no longer warranted. While I have concluded that the order still remains necessary, that should not preclude, at some future appropriate time, Ms Butler being able to apply to the Family Court to have the order reviewed.25

Result

[28]The appeal against the making of the protection order is dismissed.

Solicitors:

Crown Solicitor, Christchurch

24     See SDN v RAS [2019] NZHC 2905, [2019] NZFLR 426; and S v S [2017] NZHC 1574, [2017]

NZFLR 519.

25     Family Violence Act, s 110; and Sentencing Act, s 123G.