R v Benatzky [2017] NZDC 8428 (15 March 2017)

Last Updated: 24 August 2017

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT WELLINGTON

CRI-2016-085-001250 [2017] NZDC 8428

THE QUEEN

v

_{STEFAN BENATZKY}

Hearing:	15 March 2017
Appearances:	J Mildenhall for the Crown K Smith and J Dean for the Defendant
Judgment:	15 March 2017

_{NOTES OF JUDGE D R W BARRY ON SENTENCING}

[1] Stefan Benatzky is 38. Mr Benatzky faces sentence following a jury trial held in late February 2017, where he was found guilty and convicted of one charge of sexual violation by unlawful sexual connection, two charges of making intimate visual recordings, and two charges of posting harmful digital communications, the first carrying a maximum of 20 years’ imprisonment, the second two a maximum of three years’ imprisonment each, and the third, maximum prison sentences of two years each. There is also a conviction for possession of cannabis that followed a guilty plea, independently and unrelated to the trial.

Facts

[2] The facts were canvassed fully at trial, but for the record, what happened was that the defendant and the victim had a commercial arrangement, whereby she

_{provided him with sexual services. It all went wrong on this last occasion in [month}

R v STEFAN BENATZKY [2017] NZDC 8428 [15 March 2017]

deleted] 2015, when they met for such an encounter, drove to an out of the way parking area on Wellington’s South Coast. They began consensual intercourse in the back of his vehicle. At one point she consented to and submitted to having cable ties restraining her hands. Before vaginal intercourse re-commenced, he asked and was declined to have anal sex. He penetrated her anus with his penis despite that, and despite her entreaties. She managed to bodily wriggle about and disconnect connection, and then in order to minimise any perceptible risk, submitted to further vaginal sexual intercourse until ejaculation.

[3] It was not until the [date deleted] 2016 that this matter then resurrected itself when she received Facebook messaging from the defendant, saying amongst other things that he had pictures and videos that he had taken of her during sexual encounters. She responded saying that he had never had any permission and asking him to delete them. His response was that he wanted to meet her so that she could delete them herself. That never took place, but within a day or so he had messaged her asserting that he would give these images away, and asking if she wanted a copy. He then sent a photograph of her sitting unclothed on a toilet.

[4] She then received another Facebook message from him a little while afterwards, threatening to post images in cyberspace. Once again, she tried to make arrangements to have these deleted. That was unsuccessful, and in the course of that subsequent exchange he sent a video taken inside his vehicle while a sexual encounter was taking place, and in the aftermath of that. Those latter actions found the offences of making intimate visual recordings and posting harmful digital communications.

[5] The possession of cannabis arose when the police executed a search warrant after a formal complaint had been made in relation to the imaging and the sexual activity, and located 27 grams of cannabis.

[6] The defendant, who is a German national who has been working in

New Zealand, has no prior convictions.

Reports

[7] The victim impact statement has been read in Court by the victim. She has been traumatised by physical injury at the time and by emotional trauma since, and as part of that has suffered financial penalty and counselling costs to try and deal with that trauma.

[8] The pre-sentence report that I have notes that Mr Benatzky continues to deny this offending, maintaining that it was consensual sex all along. He had been living with his partner and two sons. She is Japanese, as I understand it, and has returned to Japan, taking the children. The report makes a point that he may never be able to undertake an active role in the parenting of the children because of possible immigration restrictions to Japan with convictions of this nature. He is currently unemployed, and through Probation contact made with friends of his, he is reported as being a good father who cares deeply for his family. While maintaining his innocence, the report noted that he was sorry about everything that had happened, for everyone involved, with the rider that he cast the victim as destroying his life.

Crown

[9] The Crown written submissions refer me to authorities including Court of Appeal sentinel sentencing guidance for sexual offending of this type, R v AM1. Crown submit that in view of the aggravating factors, that it posits a starting point in the mid range of band 2 of those sentencing bands in that case apply, at eight years. The Crown submit that the other two charges warrant starting points together of between 12 and 18 months, with an all-up starting point of between nine and nine and a half years.

Defence

[10] Defence counsel, again in written submissions to which Mr Smith has spoken today, submits that the starting point is rather at the higher end of band 1 of R v AM,

_{at around the six to eight year mark. He submits that as far as the offending is}

1 R v AM [2010] NZCA 114, [2010] 2 NZLR 750

concerned, the sexual violation was an aberration emerging from ongoing commercial sexual engagement over several months, rather than some sort of stranger rape, and thereby the victim was less vulnerable. He says that the scale was limited to the one incident, and that was a relatively brief duration. He submits that that warrants a starting point being closer to six years than anything else. Of the other charges around the images, he submits that they were made and intended for the defendant’s own uses rather than posting, that there was posting as it happened only to the victim rather than the general public, and that if on its own those charges would warrant, a sentence of less than two years, and once the totality factor is put into the equation, that there should be an uplift of not more than about five months to that starting point.

Sentence

[11] The submissions and other information outlined above having been taken into account, I turn to the sentencing exercise, and ask Mr Benatzky stand at this point in the process. I see the lead offending being the sexual violation. The approach that I take is that the collateral charges of making and posting intimate visual recordings and harmful communications, I see as aggravating factors, taking into account the totality principle.

[12] I look for guidance to R v AM, and while the Crown have posited this in Band

2, at around eight years, the Court of Appeal made it clear that was to be applied in situations of moderate seriousness, involving such things as a vulnerable victim, a weight of numbers of people involved and what it characterises as “additional violence”.

[13] Here I find the aggravating factors in terms of those sentencing guidelines. Firstly, the planning. Not in the sense of the encounter, but in the use of cable ties which, while consensually applied, effectively rendered the complainant vulnerable and less able to resist the non-consensual anal penetration that followed that constraint.

[14] Secondly, the harm to the victim in terms of the victim impact statement read. She was traumatised physically with anal injury, and emotionally, which is an ongoing trauma that has cost her dearly financially to try and cope with it by way of counselling. In summary, the victim’s life has been ineluctably blighted.

[15] The third aggravating factor I perceive is an element of breach of trust, where a commercial arrangement for sexual services was breached by inflicting unwanted injurious and painful anal rape. I accept by way of completeness that this was of limited duration, and ceased ultimately after the victim’s struggles and entreaties brought that penetration to a halt.

[16] Those aggravating factors of themselves would put the offending on the cusp of bands 1 and 2, but what elevates it I see is the digital dimension, the surreptitious taking of images and then posting them to the complainant. That has an element of degradation and humiliation. The first of sitting unclothed on a toilet seat, and the second captured engaging in sex, albeit a brief video of about 45 seconds in duration. This was clearly unknown to the victim. The jury must have accepted her assertions that she thought he was using his phone for the torch only , to illuminate their contact, but was unaware that images were being captured. The posting of these images ties into that an element of humiliation and overbearing behaviour, being posted to her sequentially and in the context of instilling escalating fear by threats of posting these images publicly. Those pieces of offending elevate this into the lower end of band 2 of R v AM, and I see a starting point of eight years’ imprisonment warranted.

[17] The cannabis charge is subsumed, and Mr Benatzky is convicted and discharged on that.

[18] I turn to mitigating factors. I take into account Mr Benatzky’s prior clean record, and I take into account also the submission that imprisonment, which is inevitable, will be particularly difficult for Mr Benatzky without family anchoring him and supporting him. Also, the fact that his family is now dispersed. I accept that in all probability, the travel restrictions to Japan where they are now based, where he has two small boys, may well deprive him of a future parenting role. For

these I factor in a discount of around 12 percent, or a year, to reduce that reference point to seven years’ imprisonment.

[19] That is applied on the offence of sexual violation by unlawful sexual connection, by a sentence of seven years’ imprisonment. The two offences of making intimate visual recordings and posting harmful digital communications draw concurrent sentences of one year each concurrent with the leading sentence of seven years’ imprisonment.

D R W Barry

District Court Judge