Police v Benson [2019] NZDC 10810 (5 June 2019)

Last Updated: 2 December 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT WELLINGTON I TE KŌTI-Ā-ROHE KI TE WHANGANUI-A-TARA

CRI-2018-085-003216

[2019] NZDC 10810

NEW ZEALAND POLICE

Prosecutor v

[LOGAN BENSON] Defendant

Hearing:	5 June 2019
Appearances:	Sergeant G Hilsdon for the Prosecutor P Gilbert for the Defendant
Judgment:	5 June 2019

NOTES OF JUDGE P J BUTLER ON SENTENCING

[1] Mr [Benson], in date sequence the charges you face for sentencing are breach of intensive supervision in August last year, male assaults female on [date 1 deleted] last year, breach of police bail on 19 October last year, Crimes Act 1961 assault on [date deleted] last year and then on [date 2 deleted], assault with intent to injure, strangulation and threat to kill. Those three charges all involved the same complainant, as did the male assault female on [date 1] 2018. Those are the lead offences as far as I am concerned and the facts in relation to them are as follows.

[2] When the male assault female occurred on [date 1], you and your partner, who was the victim of the offending, had been in a relationship for about four months. You have no children together. There are four previous family harm incidents between you

NEW ZEALAND POLICE v [LOGAN BENSON] [2019] NZDC 10810 [5 June 2019]

and her. On [date 1] you were at a Wellington address. You argued with your partner. You became agitated and struck her once across the face with an open hand to the side of her head. This caused her to develop a black eye over the next two days. When you were spoken to by the police you said that you did not strike her in face causing that black eye but you gave another explanation which you said accidentally caused that black eye via collision with a bedroom door. You had previously appeared before the Court.

[3] The charges in relation to [date 2] matters are as follows. Your relationship by that time had lasted for about six months. On [date 2] you arrived at a Wellington address and entered her room unannounced. She was relaxing on her bed. You jumped on her and pinned her down the bed. You put both hands tightly around her throat and began choking her for about a minute. She tried to break free by prising your hands away but she was not able to do that. After choking her, you started punching her in the face. You punched her about 10 times using your right closed fist with full force. You said to her, “I’m either going to kill you now or I’m going to kill you later”. You continued to strike her in the face another 10 times with force. After slapping her you kicked her in the stomach. You stood over her and said, “I’m going to use this piece of glass to slash your throat”. You were referring to her broken iPhone glass cover. You also said to her, “Do not talk. If you scream for help I’m going to stomp on your head. If you don’t listen to me, I will kill you. I am not scared. I do not care if I get done for murder”.

[4] Understandably she feared for her life and believed that you were intent on killing her. Before leaving the room you took her iPhone and put it in your pocket. You did not have authority to do that. She received two black eyes and bumps to the back of her head. There was a graze around her neck, bruising on her neck caused by you choking her. In explanation you adamantly denied the allegations which were made against you. You denied being at the address at the time of night, claiming you were home with your flatmates and previously appeared before the Court.

[5] I have been given photographs of her in colour which do disclose the sort of injuries that she has complained about to the police. Equally, I have been handed by your counsel photographs of you with injuries which are said to have been caused by

her, in the context of what must have been a fairly volatile relationship between the two of you.

[6] You have previous convictions for violence or threatened violence. There are four of those. The last one was speaking threateningly on 4 February 2018 and that led to the sentence of intensive supervision which you have breached. The pre-sentence report is an extensive document. The recommendation is an inevitable sentence of imprisonment but with release conditions, meaning that the sentence in the opinion of the author of the report, should be for two years or less. There is no address available for electronically monitored forms of sentence. Your rehabilitative needs are drug use, relationship difficulties and a propensity for violence. It seems that is a two way feature in the relationship. The Medium Intensity Rehabilitation Programme is recommended as one of the release conditions. Before you were remanded in custody on these charges you were transient and had endured long periods of homelessness and you have complex mental health issues which I will refer to now.

[7] I have read a report by Dr Caroline Holmes which was prepared for the Court under the Criminal Procedure (Mentally Impaired Persons) Act 2003. I want to quote to you from the report, page 18. This is a lengthy passage but it describes the complex difficulties which affect you and your life:

Mr [Benson] is a 22 year old man with a documented history of admissions for psychotic symptoms, including visual and auditory hallucinations, persecutory beliefs. He also presents with marked mood symptoms, including dysphoria and irritability, leading to aggression towards others and destruction of property, as well as suicidal behaviour. He presents a potential risk towards others and is at ongoing risk of suicide. He continues to be preoccupied with feelings of nihilism and poor self-worth, coupled with psychotic symptoms that appear to fluctuate in severity, as does his level of insight. His speech is stilted and somewhat philosophical which can affect his ability to disclose his symptoms. It is difficult to determine how much of this may represent the underlying psychotic process.

[8] Mr [Benson], I have not read that to embarrass you. I have read it because to me it makes a difference in your sentencing and I am going to discount the ultimate sentence on account of that serious description of the difficulties that beset you mentally. In any event, the medical professionals found that you were fit to stand trial and would have been fit to instruct counsel in the event of a trial.

[9] Prosecution submissions are to the effect that the lead charge is the charge of strangulation. It says the starting point should be a sentence of three and half years, with an uplift of two months for the Crimes Act 1961 assault and a further month for the male assault female. That would make a starting point sentence of three years, nine months’ imprisonment. The prosecution also says there should be another uplift on the basis of the offending being carried out while you were subject to that sentence of intensive supervision at the time of the offending and you were on Court bail for the male assault female when the offending on [date 2] 2018 occurred. That would take the sentence something close to four years and the Hessell discount of 25 percent should be available for your guilty pleas.

[10] On your behalf, Mr Gilbert says that the starting point should be between two and three years. He prefers of course the two year band and described to me the volatile relationship between you and your former partner which he described as a recipe for disaster.

[11] The discounts I intend to provide for sentencing are as follows.

[12] Firstly, the totality factor which is worth a 20 percent discount.

[13] Secondly, the mental health factors which I have just referred to. Even if not directly causative of your offending, those difficulties exist for you. They are part of your life and they go some way to explaining your behaviour and the causes of your offending. I allow a 10 percent discount for that.

[14] Thirdly, it appears to me that your upbringing has been dysfunctional. You have lived a transient lifestyle and I allow a further 10 percent discount for those factors. I do not need a cultural report to apply that in your favour.

[15] Finally, there would be a 25 percent discount for your guilty plea.

[16] The starting point I adopt is a sentence of 40 months’ imprisonment. After allowing those discounts, the end sentence is one of 17 months. That applies on all

charges except the breach of intensive supervision. The release conditions are those which are set out in the pre-sentence report. These are as follows:

(a) You are not to associate or have contact with the victim of your offending, without the prior written approval of your probation officer.

(b) Not to enter [locations deleted] or any other suburb that the victim may reside in as defined by a probation officer.

(c) To submit to electronic monitoring in the form of GPS technology, as directed by your probation officer in order to monitor your compliance with any conditions relating to your whereabouts.

(d) To comply with the requirements of electronic monitoring and provide access to the approved residence of a probation officer and representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment, as directed by the probation officer.

(e) Not to possess or consume any illicit drugs.

(f) To attend an assessment for the MIRP programme as directed by your probation officer.

(g) To attend and complete any counselling, treatment or programme as directed by that assessment and as directed by and to the satisfaction of your probation officer.

(h) To attend an assessment for alcohol and other drug intervention as directed by your probation officer.

(i) To attend and complete any counselling, treatment or programme as recommended by the assessment, as directed by and to the satisfaction of your probation officer.

[17] Those special release conditions will continue for six months past the imprisonment end date. Because the sentence I have imposed is under two years, you only serve half of the sentence, half of 17 months. I do not know where you are with that at the moment. You have obviously been remanded in custody. The time that you have spent in custody will come off the sentence time.

[18] There will be a final protection order in favour of the victim of your offending Mr [Benson]. I am not going to make an order for reparation. Your circumstances are that you are about to serve a prison sentence. You have no means of paying the reparation and the victim would get a false sense of hope that her property was going to be restored to her by a reparation order which you cannot possibly fulfil at the moment. So, no order for reparation. Final protection order in favour of the victim.

P J Butler

District Court Judge