Butler v Police

[2017] NZHC 2972

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-419-000076 [2017] NZHC 2972

BETWEEN

BRYCE WILLIAM BUTLER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 December 2017
Counsel:	JD Bell and JL McLeod for Appellant RG Douch for Respondent
Judgment:	1 December 2017

ORAL JUDGMENT OF DOWNS J

Solicitors:

Crown Solicitor, Hamilton.

Public Defence Service, Hamilton.

BUTLER v POLICE [2017] NZHC 2972 [1 December 2017]

[1]      On 9 November 2017 Judge M L S F Burnett sentenced Mr Bryce Butler to a four and a half month term of imprisonment.1     Mr Butler pleaded guilty, on the morning of trial, to a charge of causing harm by posting a digital communication, an offence contrary to s 22 of the Harmful Digital Communications Act 2015. Mr Butler had foreshadowed his plea two days earlier.   Mr Butler contends the sentence is manifestly excessive.  He contends his offending “was far less serious than that in Brittin”.2  And, a non-custodial sentence was adequate.

[2]      The facts are simple, albeit unusual.   In 2002 Mr Butler was convicted of indecent assault in relation to the victim.  She was then nine.  The offending resulted in a term of 18 months’ imprisonment.   On 25 February 2017 Mr Butler posted a message 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  was private, so no one other than the victim could read it. However, as the Judge correctly observed, the message re-victimised the victim long after the sexual offending in circumstances in which she would have believed all of that was behind her. Unsurprisingly, the victim impact statement describes the victim as extremely traumatised by the message, which she regarded as both “intrusive and shocking”. The victim was worried also Mr Butler may attempt to find her.

[4]      On behalf of Mr Butler, Mr Bell emphasises the difference between this case and Brittin.  Brittin involved the posting of intimate photographs of the victim and related commentary she was a person who would readily have sexual intercourse with others. 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  was

appropriate.   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 does not follow Judge Burnett was wrong to impose a term of imprisonment.

[7]      First, Mr Butler had previously committed a serious sexual offence against the victim when she was a child.  Second, the instant offending re-victimised her many years after the event.  Third, Mr Butler had previously been sentenced to a term of home detention. As Judge Burnett noted, in 2009 Mr Butler possessed objectionable material.  That resulted in a sentence of home detention in 2012.  The pre-sentence report observed that sentence appears to have had “a limited affect as a deterrent” to further offending.  Denunciation was an available and indeed appropriate response.

[8]      Mr Bell observed if Mr Butler had made the same observations to the victim in 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 digital technology can cause,  or at least misuse can  cause.   The case  exhibits unusual aggravating facts.

[9]      For these reasons, the appeal is dismissed.

……………………………..

Downs J