BENNETT v R [2004] NZCA 59 (11 May 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA428/03THE QUEEN

v

JASON MURRAY BENNETT

Hearing: 30 March 2004

Coram: Anderson P Hammond J William Young J

Appearances: K M Daniels for Appellant
E M Thomas and T Smith for Crown

Judgment: 11 May 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

Nature of the appeal

[1] This was an appeal against sentence. The appellant was convicted in the District Court by Judge Rea on two counts of aggravated robbery, two of kidnapping, two of conspiracy to commit aggravated robbery and one count of conspiracy to commit robbery. He was sentenced to a total of ten years imprisonment and, pursuant to s86 of the Sentencing Act 2002, the Court ordered that he serve a minimum period of imprisonment of six years.
[2] The appeal is confined to the minimum non-parole period, which is said to be manifestly excessive. In his grounds of appeal the appellant had also submitted that the Judge’s method of computation of the minimum non-parole period imposed in respect of cumulative lead sentences should not themselves have been accumulated; but that particular ground has now been abandoned.

The offending

[3] The Judge took the view, unchallenged before us and clearly open to him, that the overall seriousness of the offending was indicated by the aggravated robberies, which were separated in time and warranted cumulative sentences totalling ten years imprisonment. Each was carried out with considerable premeditation, planning and ruthless disregard for innocent members of the community. In each case the appellant exploited his knowledge of the physical layout and attributes of premises, personnel activities and the availability of cash, from his involvement as a cleaner at the particular premises.
[4] In October 2000 the appellant and an accomplice climbed on to the roof of the Grumpy Mole Saloon in Napier. They opened a window and cut security bars with heavy duty cutting equipment to enable the accomplice to enter the premises and hide until the manager went to his office to count the weekend takings. Obviously in accordance with a plan, the associate burst out of his hiding place and forced the manager, at the point of a sawn-off double barrelled shotgun, to open the safe, giving access to the takings. The manager was forced to lie on the floor and his hands were tied behind his back using plastic wrist ties, immobilising him as the appellant’s accomplice emptied the money from the safe and absconded. The appellant acted as lookout during this phase. Eighteen thousand dollars were taken in the robbery.
[5] On 23 June 2002 the appellant and an associate climbed on to the roof of the Onekawa Hotel, obtained entry to the building and, having crawled through the ceiling area, eventually reached and cut their way into a toilet block which was known to be free of burglar alarms. They were waiting for an elderly woman employee to arrive and turn off the burglar alarms in the premises. This victim eventually arrived, was confronted by the two criminals, balaclava-clad and threatening her with a knife. They forced her to go with them to an office where a safe was known to be located and to open the safe, after which she too was immobilised by having her hands tied behind her back, her feet tied and her cardigan pulled up over her head. The appellant and his accomplice then escaped with approximately $30,000 in cash. The abuse of the two victims founds the two kidnapping charges.
[6] In August and October 2002 the appellant conspired with others to commit aggravated robberies of sports bars, employing the same modus operandi, that is, effecting entry under cover of darkness and awaiting the arrival of personnel who could be forced to open safes and give the conspirators access to takings. The conspiracy to commit robbery involved a plan to snatch takings from a staff member of a McDonalds restaurant in Napier, en route to a bank. The conspiracy plans were not realised before a Police surveillance operation which disclosed them was terminated.
[7] In his sentencing notes the Judge gave appropriate credit for the guilty pleas, took into account the principles elucidated by this Court in R v Mako [2000] 2 NZLR 170, and imposed two cumulative sentences of five years each for the aggravated robberies and concurrent sentences of three years each in respect of the kidnappings and conspiracies. The Judge then took into account this Court’s indications in R v Brown [2002] 3 NZLR 670, and imposed a minimum non-parole period in the following terms:

In the Court of Appeal judgment in Brown the Court has said that a non-parole period can be imposed where the seriousness of the offence is such that the one third release that is possible would represent insufficient denunciation, punishment and deterrence.

In circumstances such as this where you were the moving force of not one but two aggravated robberies, kidnappings and the potential for more aggravated robberies, in my view the Crown’s submissions are well founded in this case. Your own counsel has not addressed the issue in public but he has referred to it in the submissions that he has made and it has to be said that he has not been able to mount a strong argument against the imposition of a non-parole period.

I consider the appropriate non-parole period in relation to each of the two cumulative sentences is three years on each sentence making a total non-parole period of six years based on the ten year sentence that you have had imposed upon you.

Arguments for appellant

[8] This is not a case where the appellant could realistically contend that he should not have been ordered to serve a minimum term of imprisonment pursuant to s86 of the Sentencing Act, and he did not advance that argument. But through his counsel he contended that the actual minimum period imposed was manifestly excessive having regard to a number of matters. These included the guilty pleas which saved approximately three weeks of trial with incidental inconvenience and expense and the risk of retraumatising the victims. Counsel submitted that no actual injury was caused to any individual or member of the public. He also submitted that the conspiracies were not advanced in circumstances where there may be some indications that the appellant actively dissuaded others from pursuing the agreed crimes. As to the appellant’s personal situation, counsel emphasised that his client had been a successful business operator before succumbing to methamphetamine abuse with consequential association with gangs. He has resolved to abandon the use of drugs and criminal activity, was remorseful and had the benefit of a number of written testimonials from persons who know him. Counsel argued that his client was not only keen to get back into the community but would do so supported by friends and family. It was submitted that the minimum period should not be so long as to discourage active endeavours for rehabilitation.

Arguments for the Crown

[9] Counsel for the Crown pointed out, as aggravating features of the offending, the appellant’s active involvement in planning and the extent of the planning, the premeditated use of weapons and disguises and the significantly traumatising actions in respect of the victims. There was violence both actual and threatened, significant financial loss, abuse of trust on the part of the appellant, and exploitation of knowledge obtained by him in confidence. The appellant could not suggest that the term of the non-parole period was inconsistent with existing authorities, was not wrong in principle and was fairly open to the sentencing Judge.

Discussion

[10] Once the circumstances of an offence are correctly identified as sufficiently serious to justify a minimum period of imprisonment longer than the period otherwise available under s84(1) of the Parole Act 2002, so as to establish a jurisdictional basis for an order, the fixing of a period up to two-thirds of the full term of the sentence becomes very much a matter of judgment which ought not be displaced merely because an appellate court might have responded differently if sentencing at first instance. There is nothing in the present case which satisfies this Court that the minimum sentence of imprisonment which the District Court ordered is manifestly excessive. All of those aggravating features which the Crown has identified are significant and self-evident. The crimes were carried out by a mature man who exploited inside knowledge and planned the ruthless terrorising of innocent citizens in order to satisfy greed. The period of offending was extensive, thereby indicating the appellant’s commitment to his criminal ventures. We acknowledge that the length of the term is a stern measure of denunciation and deterrence and longer than some Judges might have been disposed to order, but we are not led to conclude that it is manifestly excessive and the appeal must accordingly be dismissed.

Solicitors:
Ken Daniels, Masterton for Appellant
Crown Law Office, Wellington