Benson v R [2013] NZCA 39 (1 March 2013)

Last Updated: 6 March 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA348/2012 [2013] NZCA 39

BETWEEN TRACEY BENSON Appellant

AND THE QUEEN Respondent

Hearing: 14 February 2013

Court: White, Simon France and Asher JJ

Counsel: R Fairbrother for Appellant M J Lillico for Respondent

Judgment: 1 March 2013 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by White J)

[1] Ms Benson appeals against her sentence of two years and one month’s imprisonment on charges of supplying methamphetamine and supplying cannabis oil.[1]
[2] Ms Benson pleaded guilty to the two offences which involved arrangements she had made with a corrupt prison officer at Rimutaka Prison to supply drugs to two inmates, one of whom was her partner.
[3] As the offending occurred while Ms Benson was on parole for previous serious drug offending for which she had been sentenced to five years six months’ imprisonment, she was recalled to prison to complete her sentence which had a final release date of 7 August 2013.
[4] Ms Benson’s sole ground of appeal is that when sentencing her for the current offending in the High Court Ronald Young J erred in failing to consider the totality principle. Mr Fairbrother submits that Ms Benson received an excessive punishment for her offending and the aggravating circumstance. The error of law was the failure to consider the totality against Ms Benson’s personal circumstance of a recall parolee resulting in a disproportionately severe outcome. The sentence was manifestly excessive because the effective term was 43 months when a sentence of less than 24 months could have been expected if the offending had not occurred while Ms Benson was on parole.
[5] We do not agree with the submissions for Ms Benson. For the following reasons we consider that the sentence imposed by Ronald Young J correctly took into account the totality principle and was not manifestly excessive.
[6] First, the Judge noted defence counsel’s argument that Ms Benson was on parole at the time of the offending and that that was an aggravating feature to be balanced with the 17 months subsequently spent by Ms Benson in custody on recall.[2]
[7] Second, the Judge said that:[3]

There must be some uplift to mark the fact that this was offending while on parole even though you have been recalled to prison. It would easily have been a much higher uplift if the recall had not occurred. Both aspects are important, the fact that you continue to offend in the same way, and the fact that you did so while on parole add to the seriousness.

[8] Three months’ imprisonment was then added as an uplift to recognise both of these facts, namely her previous serious drug offending and her further offending while still on parole.[4]
[9] Third, the approach followed by the Judge was in accordance with the decision of this Court in Vernon v R[5] where it was stated:

[15] This Court has acknowledged that there is a risk of double punishment in such circumstances, for example in R v Paul. However, that does not mean that no account should be taken in subsequent sentencing of the fact that the further offending was committed while on parole. In the present case, the Judge reduced the uplift from 18 to 12 months to reflect the fact that the appellant had been recalled to serve out his earlier sentence as a result of the present offending. As Ms Inwood noted, this was an equivalent allowance to that made by this Court in similar circumstances in R v Repia.

[16] We consider that Miller J made a sufficient allowance, although we accept that some judges may have allowed a little more. We do not accept that a “one for one” reduction was required, that is, a reduction of 14 months to reflect the time actually spent on recall. Previous convictions and the commission of offences while on parole are, as a matter of statute, aggravating features in subsequent sentencing.

[10] We therefore accept the submission for the Crown that the Judge was within his discretion to make some uplift for previous convictions and offending on parole and that he did so correctly. In our view the uplift of three months was comfortably within the range of available uplifts given Ms Benson’s previous record and offending on parole, while balanced against the 17 months served on recall. Our view is reinforced by the fact that the Judge also took into account the 17 months served on recall when deciding not to impose a minimum term of imprisonment.[6]
[11] We therefore agree with the Crown that the Judge was careful to recognise the risk of double-punishment (or the totality principle) and did not uplift it by as much as he might have. The uplift that he made was 11 per cent which was well short of the substantial uplifts that are sometimes imposed in relation to drug offending: Taylor v R[7] (40 per cent), Waterworth v R[8] (23 per cent) and R v Lewenikurowai[9] (50 per cent).
[12] Accordingly, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1] R v Singh HC Napier CRI-2010-041-3793, 10 May 2012.
[2] At [81].
[3] At [85].
[4] At [86].
[5] Vernon v R [2010] NZCA 308.
[6] At [90].
[7] Taylor v R [2012] NZCA 332.
[8] Waterworth v R [2012] NZCA 58.
[9] R v Lewenikurowai [2007] NZCA 531.