BUTLER v POLICE [2017] NZHC 2972

BUTLER v POLICE [2017] NZHC 2972 [1 December 2017]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2017-419-000076[2017] NZHC 2972BETWEEN BRYCE WILLIAM BUTLERAppellantAND NEW ZEALAND POLICERespondentHearing: 1 December 2017Counsel: JD Bell and JL McLeod for AppellantRG Douch for RespondentJudgment: 1 December 2017ORAL JUDGMENT OF DOWNS JSolicitors:Crown Solicitor, Hamilton.Public Defence Service, Hamilton.[1] On 9 November 2017 Judge M L S F Burnett sentenced Mr Bryce Butler to afour and a half month term of imprisonment.1 Mr Butler pleaded guilty, on themorning of trial, to a charge of causing harm by posting a digital communication, anoffence contrary to s 22 of the Harmful Digital Communications Act 2015. Mr Butlerhad foreshadowed his plea two days earlier. Mr Butler contends the sentence ismanifestly excessive. He contends his offending "was far less serious than that inBrittin".2 And, a non-custodial sentence was adequate.[2] The facts are simple, albeit unusual. In 2002 Mr Butler was convicted ofindecent assault in relation to the victim. She was then nine. The offending resultedin a term of 18 months' imprisonment. On 25 February 2017 Mr Butler posted amessage to the victim's Facebook account. It said: "You are ugly and a bloody lier(sic)". And, "don't hug her she will have you arrested, it can't be about sex".[3] Contrary to Judge Burnett's observation at sentencing, the message wasprivate, so no one other than the victim could read it. However, as the Judge correctlyobserved, the message re-victimised the victim long after the sexual offending incircumstances in which she would have believed all of that was behind her.Unsurprisingly, the victim impact statement describes the victim as extremelytraumatised by the message, which she regarded as both "intrusive and shocking". Thevictim was worried also Mr Butler may attempt to find her.[4] On behalf of Mr Butler, Mr Bell emphasises the difference between this caseand Brittin. Brittin involved the posting of intimate photographs of the victim andrelated commentary she was a person who would readily have sexual intercourse withothers. As such, it arguably involved the paradigm case under s 22 of the Act.[5] The District Court Judge adopted a starting point of 18 months' imprisonment.On appeal, Woodhouse J concluded the starting point ought to have been 12 months'imprisonment. Woodhouse J also concluded leave for home detention wasappropriate. His Honour noted the maximum penalty was a term of two years'1 Police v Butler [2017] NZDC 25422.2 Brittin v Police [2017] NZHC 2410.imprisonment. The Judge saw Mr Brittin's offending as serious, albeit at the mid-point in terms of culpability.[6] Plainly, this case has a number of differences from Brittin. However, it doesnot follow Judge Burnett was wrong to impose a term of imprisonment.[7] First, Mr Butler had previously committed a serious sexual offence against thevictim when she was a child. Second, the instant offending re-victimised her manyyears after the event. Third, Mr Butler had previously been sentenced to a term ofhome detention. As Judge Burnett noted, in 2009 Mr Butler possessed objectionablematerial. That resulted in a sentence of home detention in 2012. The pre-sentencereport observed that sentence appears to have had "a limited affect as a deterrent" tofurther offending. Denunciation was an available and indeed appropriate response.[8] Mr Bell observed if Mr Butler had made the same observations to the victimin the street he would have committed no offence. I accept that submission. However,the offence provision is cast broadly. It recognises the capacity for harm digitaltechnology can cause, or at least misuse can cause. The case exhibits unusualaggravating facts.[9] For these reasons, the appeal is dismissed...Downs J