IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA474/2018
 [2019] NZCA 65

	
BETWEEN	
SHAUN THOMAS BISHOP BUTLER
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
11 February 2019	

Court:	
Miller, Simon France and Peters JJ	

Counsel:	
T M Cooper and ILM Archibald for Appellant
BCL Charmley for Respondent	

Judgment:	
22 March 2019 at 2.00 pm	

JUDGMENT OF THE COURT

A	The appeal against sentence is allowed.
B	The sentence of 15 months’ imprisonment on charge one is quashed, and in 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.  The focus of the appeal is on the credit given for various mitigating factors, but it is also submitted that imposing cumulative sentences unadjusted for totality has led to a manifestly excessive sentence.
Facts
[2]	Mr Butler was in brief relationships with the women — with the first complainant during the period May 2011 to October 2011; and with the second complainant during the period November 2012 to May 2013.  It seems the conclusion of each relationship left him feeling rejected and, on each occasion, he thereafter harassed the women for a period.  The victim impact statements make clear the significant ongoing emotional impact the offending has had on the women.  It has affected 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 against her clearly designed to harass her and extending between July 2011 to March 2012.  They included repetitive and abusive phone calls, text and voice messages, and threats to rape her purporting to be from another person.  You spread untruths and rumours about her sexual relationship within the work environment.  You made a formal complaint to her employer.  You blocked friends from her Facebook account.  You changed her Facebook name to a sexually explicit and offensive one, which she was unable to remove for some time.  You stole important personal and business documents and deliberately destroyed photography equipment which you knew she needed for 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 her underwear, advising her of you doing that, and frightening texts pretending to be another person.
	(b)	Repeated threats to publish naked photographs of her in conjunction with an award‑winning photograph.
	(c)	Repetitive abuse of name calling, silence and suggestions that you knew what she was doing, when she understood you were out of town.
	(d)	Sitting beneath her bedroom window at night and communicating with her about personal and intimate matters, using another false identity.
	(e)	Making her aware of arrangements you have made for her to be 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 SIM cards to avoid detection.
[6]	As far as the second complainant is concerned, between May and June 2013 you engaged in a similar campaign of harassment.  You sent abusive texts, made phone calls using blocked and international numbers.  You took a photograph of her in the bath without her knowing.  You accessed her iCloud account, obtained a private photograph of her in a post‑surgical state and then sent her a montage of photos, including intimate photos of herself, each with name and including reference to her business logo.  That was sent by an anonymous email address that was eventually traced back to you.  You placed an abusive calendar reminder on her phone, accessed her Facebook, ended up inside her home, confronting her in her kitchen and on that occasion it seems you took her passport.
[4]	In terms of events at the trial, Mr Butler pleaded guilty halfway through the trial to a number of charges in relation to each complainant.  The first complainant had completed all her evidence.  The second complainant was about 30 minutes into evidence-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 complainant started.  He is now 34, and his personal circumstances have undergone a significant change.
[6]	Mr Butler left New Zealand in June 2013 almost immediately after the end of his relationship with the second complainant.  He moved to Thailand, although his work 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 in 2017.
[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, but charges were not laid until August 2015.  Mr Butler was unaware of the charges until December 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 living with 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 was still unresolved in December 2016 when Mr and Mrs Butler decided to come to New Zealand leaving the step‑daughter behind.  She has since been able to join the family.
[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 to remain in New Zealand and are seeking visas on compassionate grounds.  Mr and Mrs Butler’s two young children are able to remain, so if the visa situation is not resolved, the choice will need to be made as to whether to take the children away or leave them with New Zealand family.  Mrs Butler and her children have no income and are reliant on family support.
[10]	At sentencing Mr Butler submitted a report from a psychiatrist and other letters of support.  The psychiatrist’s report did not particularly advance matters.  It confirmed Mr Butler at the time had issues dealing with rejection which were not assisted by alcohol and drug abuse.  He was diagnosed with a Major Depressive Disorder in current remission.  The other letters of support were from family members and an employer.  They point to a much more positive side of Mr Butler than reflected by his current damaging offending.
[11]	There were a number of factors consistent with remorse and insight such as returning 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 to the probation officer, psychiatrist or the Court — Mr Butler consistently minimised the 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 months for the harassment conduct.  There was then a 12-month uplift for the damage to the photographic equipment.  It is to be noted the equipment was valued at over $7,000 and was uninsured.  Its destruction had a significant impact on the complainant who needed the equipment for her business.  A one-month uplift was applied for the other charges, resulting in a final starting point of 30 months’ imprisonment.
[14]	Concerning the second complainant, the Judge took a global starting point of 20 months’ imprisonment.  This sentence was imposed cumulatively on the other harassment sentence as they were separate in time and against different complainants.  The Judge considered there was significant and deliberate malice in each.  This meant a 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”, including the new positive path Mr Butler has been on since the offending.  It is not entirely clear what other matters were included in this as the two specific factors discussed, remorse and impact on family, were not accepted by the Judge. 
[16]	The Judge also directed reparation payments:  $7,200 as regards the photographic equipment, and $5,000 emotional harm reparation to each complainant, a total therefore of $17,200.
Appeal
Totality
[17]	We begin with the issue of totality.  On the cases provided we accept the individual harassment sentence assessments of 17 months and 20 months were within range; indeed they were not at all severe given the nature of the conduct involved and the period over which it extended.  Nor is there scope to quibble with the imposition of cumulative sentences.
[18]	However, we do consider some recognition of the overlap in culpability factors was required.  The inevitable similarity in nature of the harassment conduct and the proximity in time mean matters such as denunciation and deterrence are better applied to the entire course of conduct rather than meriting a discrete, and repeated, application for each complainant.  The offending fell for sentence on the one occasion and we consider a reduction of around seven months to the cumulated starting point was required.  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 does not discretely recognise that Mr Butler voluntarily returned to New Zealand.  We do not consider the fact that the charges were defended affects this.  That is a factor that impacts on other sentencing considerations such remorse and of course guilty plea credit.  The Crown suggests it is relevant that passport issues may ultimately have forced Mr Butler’s return, but it is important not to unduly limit credit.  The reality here is that Mr Butler learned of the charges himself.  Once he knew of them, he was lawfully living in both Bangkok and Ukraine.  What opportunities those situations presented to avoid standing trial in New Zealand cannot be authoritatively said, but whatever chance existed was not taken.  Rather, Mr Butler returned on his own motion with his family to face charges and credit is appropriate.
[20]	In Rogers v R, William Young P for this Court discussed the principles at play when considering voluntary return.  The discussion there is coloured by the fact that Mr Rogers had initially absconded and so any credit needed to be balanced against creating incentives to abscond.  It is plain, however, that there has long been a practice of 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 not preclude an appropriate appellate adjustment.  In Mr Butler’s circumstances we consider 10 per cent would be appropriate.
[21]	The appellant raised other matters such as greater recognition of the impact imprisonment will have on the family situation, and the reparation orders made.  The arguments were certainly tenable but balanced against them is a generous guilty 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 combined starting point is to be reduced by seven months, and there is a further discount of 10 per cent to reflect Mr Butler’s voluntary return.  The net effect is to reduce the existing sentence by 11 months, to one of two years and seven months.
[24]	The overall sentence imposed is a mixture of cumulative and concurrent sentences.  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 for charge one, harassment of the first complainant, and in its place impose a sentence of four months’ imprisonment.  All other sentences are unchanged.

Solicitors: 
Crown Solicitor, at Auckland for Respondent