Bennett v R [2012] NZCA 44 (28 February 2012)

Last Updated: 9 March 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA682/2011 [2012] NZCA 44

BETWEEN TYSON BENNETT Appellant

AND THE QUEEN Respondent

Hearing: 21 February 2012

Court: Randerson, Potter and Simon France JJ

Counsel: E R Fairbrother and G M Fairbrother for Appellant K A L Bicknell for Respondent

Judgment: 28 February 2012 at 11.30 a.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The appellant pleaded guilty at the outset of his trial in the District Court to one count of causing grievous bodily harm to a 22 year old man. He was sentenced by Judge Rea to four years and three months imprisonment.[1]
[2] Mr Bennett now appeals against his sentence on the ground that the Judge erred in law in failing to consider and impose a rehabilitative sentence of intensive supervision rather than a term of imprisonment.

The facts

[3] The facts as described by the Judge in his sentencing notes are accepted. On 29 January 2010, the appellant had been drinking with others associated with the Mongrel Mob. During the afternoon, the appellant and several other offenders encountered the victim in an alleyway behind a camping ground. Without any provocation on his part, the victim was grabbed and thrust against a fence. He was “king hit” by one of the group and knocked to the ground. Mr Fairbrother accepted that the appellant was responsible for delivering this blow.
[4] After the victim had fallen to the ground, the victim was subjected to a number of blows, kicks and stomps, some of them directed at his head. He also received a number of kicks to the stomach region and he suffered severe bruising to his liver.
[5] While the Judge accepted there was dispute as to the precise role played by the appellant, he did not consider it appropriate to apportion individual blame. Rather, he saw the assault as a single gang attack made by four persons on a totally defenceless person who was left battered, unconscious and bleeding in the alleyway. The Judge also noted that members of the group were shouting Mongrel Mob slogans and saluting one another at the time of the attack.
[6] It was about an hour before the victim was found by a member of the public and was taken to hospital. He received head injuries in addition to the bruising to his liver. Upon admission, his condition was listed as “critical but stable” and he was placed in an induced coma. The Judge remarked it was a miracle the victim survived and that it was probable the medical attention provided at the hospital saved the appellant from a charge of murder or manslaughter.
[7] When spoken to by the police, the appellant initially denied he was present but later acknowledged responsibility by his guilty plea.

The Judge’s approach to sentencing

[8] The Judge adopted a starting point of five years imprisonment, there being no dispute that the offending fell at the cusp of bands 1 and 2 as described in R v Taueki.[2] The same starting point had been adopted in respect of two of the other offenders who had been sentenced previously.
[9] The Judge considered a small discount was warranted in respect of the guilty plea even though it had come late. He also considered there was evidence of remorse on the part of the appellant. These two factors combined led the Judge to discount the starting point by nine months with a resulting sentence of four years and three months imprisonment.
[10] The Judge declined to fix a minimum period of imprisonment having regard to the appellant’s age (18 at the time of the offending), his relative lack of previous convictions, and the fact that none of the co-offenders had received a minimum period of imprisonment.
[11] By the time of sentencing, the appellant had been on remand in custody for some 615 days. He had earlier been charged with murder in relation to a separate incident and was on bail in respect of that charge at the time of the subject offending.[3] The Judge elected not to treat this as an aggravating factor. In his view, this otherwise aggravating feature was offset by the appellant being in custody on remand rather than as a sentenced prisoner.
[12] The Judge rejected counsel’s plea that a sentence of intensive supervision be imposed, considering himself constrained by R v Taueki to impose a sentence of imprisonment in the circumstances.

The appellant’s case

[13] Mr Fairbrother accepted that, if a custodial sentence were warranted, then the term of imprisonment imposed could not be regarded as manifestly excessive. Rather he submitted that the Judge had erred in failing to consider and impose a sentence of intensive supervision. He submitted that the Judge did not have regard to the principles set out in s 8(g), (h) and (i) of the Sentencing Act 2002.
[14] Mr Fairbrother placed particular reliance on a report dated 23 December 2009 from a forensic psychiatrist, Dr Justin Barry-Walsh. This report revealed that the appellant has had a very troubled history from the time he was five years of age. He had been placed in foster care and had suffered from both physical and sexual abuse. The appellant described the frequent use of cannabis from the time he was eight years of age and said he began drinking alcohol at 11 years of age. Not surprisingly, he was often in trouble at school and had significant anger management difficulties.
[15] He had been the subject of numerous reports from psychiatrists and psychologists over a lengthy period. There had been difficulty in reaching any definitive diagnosis of his problems but Dr Barry-Walsh considered the appellant’s difficulties were encapsulated by the observation of a psychiatrist that he had a “complex neuro-developmental disorder”. This had produced a young adult with severe personality dysfunction with marked impairment in core personality functions. It also left him vulnerable to psychiatric disorder with episodes of depression and the development of substance dependence.
[16] His personality, according to the report, was characterised by marked impulsivity and major problems controlling anger. When intoxicated, he was less able to curb his impulses. While Dr Barry-Walsh considered the appellant had a well-documented history of complex problems since birth, he did not consider him to be suffering from a discrete mental illness.
[17] The Judge gave a summary of the findings of Dr Barry-Walsh and observed that, unless the appellant undertook some effective treatment, he would remain a danger both to himself and the public. The Judge recorded that counsel had cited the decision of this Court in E v R[4] as to the approach which ought to be adopted in sentencing offenders with psychiatric difficulties. However, he also noted that, in assessing the overall response, the Court must take into account the risk the offender presented to himself and the public.
[18] In this Court, Mr Fairbrother did not rely upon the approach suggested in E v R, accepting that the appellant did not have a recognised psychiatric illness and that he did present a risk to the public. While accepting the general desirability of consistency in sentencing,[5] Mr Fairbrother submitted that the present case was very different from the general run of cases: the appellant was 18 years of age at the time of the offending; he had an unusually troubled history which rendered him less able to cope with ordinary pressures; he was willing to undertake appropriate counselling programmes and he accepted responsibility for the offending.

Discussion

[19] We accept Ms Bicknell’s submission on behalf of the respondent that the Judge properly rejected the appellant’s submission that a sentence of intensive supervision be imposed. The Judge correctly identified that, despite the appellant’s troubled history, he presented an ongoing risk both to himself and to the public. The probation officer had assessed the appellant as having a high risk of reoffending due to his young age, the seriousness of the subject offending and his continued association with anti-social influences.
[20] We note that the appellant had received two Youth Court sentences for common assault in 2008 and had a conviction in the District Court in 2009 for using threatening language. Although he had not previously received a sentence of imprisonment, he continued to demonstrate an inability to control his violent behaviour despite numerous interventions over a substantial number of years.
[21] We accept that the appellant would benefit from an appropriate programme to assess his issues with substance abuse, anger management and related problems with a view to his ultimate rehabilitation. However, the seriousness of the offending and the risk he presented to the public were such that the sentencing Judge could not properly have entertained a non-custodial sentence in the circumstances of this case.
[22] We would expect the prison authorities and the Parole Board to take whatever steps are appropriate to assist the appellant while he is in prison and upon his release.

Result

[23] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Bennett DC Napier CRI-2011-41-326, 10 October 2011.
[2] R v Taueki [2005] 3 NZLR 372.
[3] He was later acquitted on the murder charge.
[4] E v R [2010] NZCA 13.
[5] Sentencing Act 2002, s 8(e).