The Queen v Butler - [2008] NZCA 173

IN THE COURT OF APPEAL OF NEW ZEALAND
CA546/07
[2008] NZCA 173
THE QUEEN
v
ROBERT BENJIMAN BUTLER
Hearing:29 May 2008

Court:William Young P, Randerson and Harrison JJ
Counsel:P H B Hall for Appellant

S B Edwards for Crown

Judgment:19 June 2008 at 12 noon

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
[1]       Mr Butler appeals against a sentence of nine months imprisonment imposed by Judge Phillips in the Invercargill District Court on 17 August 2007. Mr Butler was found guilty after trial of nine counts under the Companies Act 1993. The offending related to Mr Butler’s involvement as a director in a number of companies over the period 2003 to 2005 while prohibited from doing so as a result of convictions for crimes of dishonesty. He was convicted of three counts under s 377(1) of knowingly making false statements as to his disqualified status and six counts under s 382(1)(b) of becoming a company director without the leave of the Court.
[2]       The sentence was cumulative on a term of two years’ imprisonment imposed on Mr Butler on 16 March 2007 in respect of a charge of intentional damage so that the total sentence was two years nine months’ imprisonment. Leave to apply for home detention was declined in respect of the intentional damage sentence. It is accepted that Mr Butler was not eligible for home detention by the time of the sentence under appeal.
[3]       Mr Hall appeared for Mr Butler. He responsibly accepted that a term of imprisonment was appropriate but submitted that the term imposed was manifestly excessive. Central to Mr Hall’s argument were submissions that the sentencing Judge had:
(a)Failed to have sufficient regard to the totality of the offending;
(b)Departed inappropriately from an earlier sentence indication;
(c)Imposed a sentence which was out of line with the authorities; and
(d)Given undue weight to Mr Butler’s previous convictions.

Background
[4] Mr Butler was prohibited from being a company director as a consequence of a number of fraud related convictions between March and October 2003. In March, he was convicted of two charges of intent to defraud and 13 charges of defrauding by false pretences; in May he was convicted of six charges of using a document with intent to defraud; and in October, he was convicted of four charges of altering a document with intent to defraud. These offences are all crimes of dishonesty in terms of s 2(1) Crimes Act 1961 with the result that by virtue of s 382(1)(b) of the Companies Act he was prohibited from being a director of a company for five years after the convictions unless he obtained the leave of the Court.
[5] Between October 2003 and June 2005 the appellant became a director of six different companies without obtaining the leave of the Court. In the case of three of the six companies he signed a form of consent and certificate stating he was not disqualified…

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 The Queen v Butler

Details

AGLC: The Queen v Butler [2008] NZCA 173
Case: [2008] NZCA 173
Decision Date: 19 June 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant Robert Benjiman Butler appeals against a sentence of nine months imprisonment imposed by Judge Phillips in the Invercargill District Court. Butler was found guilty after trial of nine counts under the Companies Act 1993, relating to his involvement as a director in several companies between 2003 and 2005 while prohibited from doing so due to prior convictions for crimes of dishonesty. The court was required to decide if the sentence was manifestly excessive, and whether the sentencing judge had failed to have sufficient regard to the totality of the offending, departed inappropriately from an earlier sentence indication, imposed a sentence out of line with the authorities, and gave undue weight to Butler's previous convictions. The Court held that the sentence was not manifestly excessive, and that the sentencing judge was entitled to give weight to the totality of the offending, the previous convictions, and the seriousness of the crime. The appeal against sentence was dismissed.

The Court of Appeal considered the arguments presented by both parties, including the totality of the offending, sentence indication, other authorities, and the relevance of previous convictions. The Court held that the sentence was not manifestly excessive and that the sentencing judge was entitled to consider the totality of the offending, previous convictions, and the seriousness of the crime. The Court further held that the statutory offences at issue were designed to protect the public by ensuring that persons convicted of offences of dishonesty were prohibited from acting as directors of companies for the relevant statutory period unless the leave of the Court was obtained. Parliament had made it clear by the substantial maximum penalties that offending against these provisions was intended to be taken seriously. The Court found that the sentence was appropriate given the circumstances of the case and dismissed the appeal against sentence.

Orders