BUTLER v R [2019] NZCA 65

BUTLER v R [2019] NZCA 65 [22 March 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA474/2018[2019] NZCA 65BETWEEN SHAUN THOMAS BISHOP BUTLERAppellantAND THE QUEENRespondentHearing: 11 February 2019Court: Miller, Simon France and Peters JJCounsel: T M Cooper and ILM Archibald for AppellantBCL Charmley for RespondentJudgment: 22 March 2019 at 2.00 pmJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of 15 months' imprisonment on charge one is quashed, andin its place, we impose a sentence of four months' imprisonment.C The other sentences are unchanged.D The effect is a final overall sentence of two years and seven months'imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] Mr Butler appeals an overall sentence of three years and six months'imprisonment imposed for serious harassment offending against two women.1 Thefocus of the appeal is on the credit given for various mitigating factors, but it is alsosubmitted that imposing cumulative sentences unadjusted for totality has led to amanifestly excessive sentence.Facts[2] Mr Butler was in brief relationships with the women — withthe first complainant during the period May 2011 to October 2011; and withthe second complainant during the period November 2012 to May 2013. It seems theconclusion of each relationship left him feeling rejected and, on each occasion, hethereafter harassed the women for a period. The victim impact statements make clearthe significant ongoing emotional impact the offending has had on the women. It hasaffected their lives well beyond the actual period of the offending.[3] 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 againsther clearly designed to harass her and extending between July 2011 toMarch 2012. They included repetitive and abusive phone calls, text and voicemessages, and threats to rape her purporting to be from another person.You spread untruths and rumours about her sexual relationship within thework environment. You made a formal complaint to her employer.You blocked friends from her Facebook account. You changed her Facebookname to a sexually explicit and offensive one, which she was unable to removefor some time. You stole important personal and business documents anddeliberately destroyed photography equipment which you knew she neededfor 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 herunderwear, advising her of you doing that, and frighteningtexts pretending to be another person.(b) Repeated threats to publish naked photographs of her inconjunction with an award-winning photograph.(c) Repetitive abuse of name calling, silence and suggestions thatyou knew what she was doing, when she understood you wereout of town.1 R v Butler [2018] NZDC 16985.(d) Sitting beneath her bedroom window at night andcommunicating with her about personal and intimate matters,using another false identity.(e) Making her aware of arrangements you have made for her tobe followed while you were out of town.[5] The texts and calls were from a variety of different cellphones.You disguised your identity, used false details and repeatedly changed SIMcards to avoid detection.[6] As far as the second complainant is concerned, between May andJune 2013 you engaged in a similar campaign of harassment. You sent abusivetexts, made phone calls using blocked and international numbers. You took aphotograph of her in the bath without her knowing. You accessed her iCloudaccount, obtained a private photograph of her in a post-surgical state and thensent her a montage of photos, including intimate photos of herself, each withname and including reference to her business logo. That was sent by ananonymous email address that was eventually traced back to you. You placedan abusive calendar reminder on her phone, accessed her Facebook, ended upinside her home, confronting her in her kitchen and on that occasion it seemsyou took her passport.[4] In terms of events at the trial, Mr Butler pleaded guilty halfway throughthe trial to a number of charges in relation to each complainant. The first complainanthad completed all her evidence. The second complainant was about 30 minutes intoevidence-in-chief when matters came to an end.Personal circumstances of offender[5] Mr Butler was 27 years old when the offending against the first complainantstarted. He is now 34, and his personal circumstances have undergone a significantchange.[6] Mr Butler left New Zealand in June 2013 almost immediately after the end ofhis relationship with the second complainant. He moved to Thailand, although hiswork meant he would often be elsewhere. In Thailand he met a Ukrainian woman,and they married in 2015. They have two children, one born in 2015 and the other in2017.[7] The process leading to charges against Mr Butler was quite protracted.It seems police executed a search warrant at his parents' home in December 2013, butcharges were not laid until August 2015. Mr Butler was unaware of the charges untilDecember 2015 when he applied to renew his New Zealand passport.[8] It is said that Mr Butler decided he would return to face the charges.However, there was delay due to his family circumstances and then a health matter.Mr Butler's wife has a daughter from a previous relationship. The daughter was livingwith the couple in Thailand but lacked the documentation to come to New Zealand.The family accordingly relocated to Ukraine to get that resolved. It took time and wasstill unresolved in December 2016 when Mr and Mrs Butler decided to come toNew Zealand leaving the step-daughter behind. She has since been able to join thefamily.[9] Since Mr Butler's imprisonment, the family situation has become difficult.Mrs Butler and her daughter (Mr Butler's step-daughter) have no established basis toremain in New Zealand and are seeking visas on compassionate grounds. Mr andMrs Butler's two young children are able to remain, so if the visa situation is notresolved, the choice will need to be made as to whether to take the children away orleave them with New Zealand family. Mrs Butler and her children have no incomeand are reliant on family support.[10] At sentencing Mr Butler submitted a report from a psychiatrist and other lettersof support. The psychiatrist's report did not particularly advance matters. It confirmedMr Butler at the time had issues dealing with rejection which were not assisted byalcohol and drug abuse. He was diagnosed with a Major Depressive Disorder incurrent remission. The other letters of support were from family members and anemployer. They point to a much more positive side of Mr Butler than reflected by hiscurrent damaging offending.[11] There were a number of factors consistent with remorse and insight such asreturning to New Zealand, his eventual guilty pleas and a letter written to the Court.However, as the Judge noted, in all his communications — be it tothe probation officer, psychiatrist or the Court — Mr Butler consistently minimisedthe offending and gave explanations at times inconsistent with a plea of guilty.[12] Mr Butler has a number of convictions dating from when he was aged 20;including burglary, fighting, assault, possession of a weapon and drug offences.Sentencing[13] Concerning the first complainant, the Judge took a starting point of 17 monthsfor the harassment conduct. There was then a 12-month uplift for the damage to thephotographic equipment. It is to be noted the equipment was valued at over $7,000and was uninsured. Its destruction had a significant impact on the complainant whoneeded the equipment for her business. A one-month uplift was applied for the othercharges, resulting in a final starting point of 30 months' imprisonment.[14] Concerning the second complainant, the Judge took a global starting point of20 months' imprisonment. This sentence was imposed cumulatively on the otherharassment sentence as they were separate in time and against different complainants.The Judge considered there was significant and deliberate malice in each.2 This meanta final starting point of 50 months' imprisonment.[15] In terms of mitigation, the Judge allowed a total discount of eight months.This included a discount for the guilty plea, and "all other factors",3 including the newpositive path Mr Butler has been on since the offending. It is not entirely clear whatother matters were included in this as the two specific factors discussed, remorse andimpact on family, were not accepted by the Judge.4[16] The Judge also directed reparation payments: $7,200 as regards thephotographic equipment, and $5,000 emotional harm reparation to each complainant,a total therefore of $17,200.2 Above n 1, at [27].3 At [30].4 At [29].AppealTotality[17] We begin with the issue of totality. On the cases provided we accept theindividual harassment sentence assessments of 17 months and 20 months were withinrange;5 indeed they were not at all severe given the nature of the conduct involved andthe period over which it extended. Nor is there scope to quibble with the impositionof cumulative sentences.[18] However, we do consider some recognition of the overlap in culpability factorswas required. The inevitable similarity in nature of the harassment conduct and theproximity in time mean matters such as denunciation and deterrence are better appliedto the entire course of conduct rather than meriting a discrete, and repeated, applicationfor each complainant. The offending fell for sentence on the one occasion and weconsider a reduction of around seven months to the cumulated starting point wasrequired. We do not otherwise take issue with the starting point analysis.Mitigation[19] Turning to mitigation we consider the sentence is in error to the extent it doesnot discretely recognise that Mr Butler voluntarily returned to New Zealand. We donot consider the fact that the charges were defended affects this. That is a factor thatimpacts on other sentencing considerations such remorse and of course guilty pleacredit. The Crown suggests it is relevant that passport issues may ultimately haveforced Mr Butler's return, but it is important not to unduly limit credit. The realityhere is that Mr Butler learned of the charges himself. Once he knew of them, he waslawfully living in both Bangkok and Ukraine. What opportunities those situationspresented to avoid standing trial in New Zealand cannot be authoritatively said, butwhatever chance existed was not taken. Rather, Mr Butler returned on his own motionwith his family to face charges and credit is appropriate.5 Harassment Act 1997, s 8; Green v New Zealand Police [2012] NZHC 3228; and Kelly v NewZealand Police [2014] NZHC 3168.[20] In Rogers v R, William Young P for this Court discussed the principles at playwhen considering voluntary return.6 The discussion there is coloured by the fact thatMr Rogers had initially absconded and so any credit needed to be balanced againstcreating incentives to abscond. It is plain, however, that there has long been a practiceof giving recognition to this factor and we consider that remains appropriate.In fairness to the Judge we note it was not suggested at sentencing but that does notpreclude an appropriate appellate adjustment. In Mr Butler's circumstances weconsider 10 per cent would be appropriate.[21] The appellant raised other matters such as greater recognition of the impactimprisonment will have on the family situation, and the reparation orders made.The arguments were certainly tenable but balanced against them is a generousguilty plea discount. Overall, we see no need for further adjustment.Result[22] The appeal against sentence is allowed.[23] Two changes are to be made to the District Court analysis. The combinedstarting point is to be reduced by seven months, and there is a further discount of10 per cent to reflect Mr Butler's voluntary return. The net effect is to reduce theexisting sentence by 11 months, to one of two years and seven months.[24] The overall sentence imposed is a mixture of cumulative and concurrentsentences. Only one individual sentence is of sufficient length to carry the adjustment.Rather than changing all sentences we quash the sentence of 15 months imposed forcharge one, harassment of the first complainant, and in its place impose a sentence offour months' imprisonment. All other sentences are unchanged.Solicitors:Crown Solicitor, at Auckland for Respondent6 Rogers v R [2010] NZCA 48, (2010) 24 CRNZ 809 at [19]–[23].