Benner v R [2018] NZHC 2675 (17 October 2018)

Last Updated: 31 October 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000239 [2018] NZHC 2675

BETWEEN	HAYDEN STEUART BENNER Appellant
AND	THE QUEEN Respondent

Hearing:	16 October 2018
Appearances:	H B Leabourn for Appellant J D Simpson for Respondent
Judgment:	17 October 2018

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 17 October 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

BENNER v R [2018] NZHC 2675 [17 October 2018]

[1] Mr Benner pleaded guilty in the District Court to charges of burglary and demanding with menaces.¹ On 10 July 2018, Judge Gibson sentenced him to two years three months imprisonment.² The Judge directed Mr Benner to serve that sentence cumulatively on an existing sentence of six years six months imprisonment imposed on Mr Benner in 2013.

[2] Mr Benner appeals against sentence. He challenges the starting point selected by the Judge, and also contends it was disparate to that selected in relation to his co- offender. Mr Benner also contends the Judge gave insufficient credit to reflect his guilty pleas. Finally, he argues the Judge ought to have imposed concurrent sentences on the present charges rather than a cumulative sentence.

Background

[3] The charges were laid as a result of an incident that occurred on 16 March

2017. On that date Mr Benner and his co-offender, a Mr Barnes, went to the victim’s workplace. Mr Barnes persuaded the victim to open the door of his premises by saying they were there to purchase car parts. Mr Barnes and Mr Benner entered the premises and made the victim sit down. Mr Benner then began threatening the victim and endeavouring to force him to admit he had molested Mr Benner when he was a child. Mr Benner told the victim he would find himself in the Waitakere Forest, or a West Coast beach, if he did not provide him with money. Mr Benner also said he knew where the victim’s brother’s beach house was, and where the victim’s mother lived. He made threats in relation to both these properties. At this point they heard a car arriving outside and they left the victim’s address.

[4] The summary of facts refers to the fact that the victim received a cut to his ear. This was purportedly done to enable Mr Benner and Mr Barnes to obtain a sample of the victim’s blood for the purpose of DNA analysis. The summary does not record who inflicted the wound.

The sentence

[5] The Judge adopted a starting point of two and a half years imprisonment. He applied a discount of ten percent, or three months, to reflect the fact that Mr Benner had pleaded guilty on the morning of his trial. This produced the end sentence of two years three months imprisonment. The Judge directed that this was to be served cumulatively on the sentence of six years six months imprisonment Mr Benner is currently serving.

Challenge to the starting point

[6] The Judge selected a starting point of two years six months imprisonment after considering the decision of the Court of Appeal in Opetaia v R.³ In that case the offender and another were members of a gang. They went to a bar dressed in gang regalia and demanded that the owner of the business pay them $1200 per week. They grabbed the person working in the bar by the shirt and threatened to damage the bar if their demands were not met. The Court of Appeal upheld a starting point of two years imprisonment imposed on a charge of demanding property with menaces, the same charge as that laid against Mr Benner in the present case.

[7] Judge Gibson selected a starting point of two years six months imprisonment because he considered Mr Benner’s offending to be slightly more serious than that in Opetaia. He said that this was because of the injury inflicted on the victim in the present case.⁴ Mr Leabourn takes issue with the Judge’s conclusion, and submits the present offending is significantly less serious than that in Opetaia.

[8] The present case has similarities with Opetaia because both cases involve two offenders aggressively demanding money from a victim using threats of violence against property if their demands were not met. Opetaia has the aggravating feature that it involved a gang dimension and that is not the case here. However, the disturbing feature of the present case is that it constituted a form of vigilante behaviour in which the offenders sought to extort money from the victim for perceived wrongdoing by the victim against Mr Benner. Of itself that is a significant aggravating factor.

Furthermore, and for the same reason, the present case involves targeted offending whereas that in Opetaia appears to have been a random approach to the owner of commercial premises. These factors persuade me, albeit for different reasons, that the Judge was correct to view the offending in the present case as being more serious than that in Opetaia. I therefore do not consider a starting point of two years six months imprisonment was outside the available range.

Alleged disparity between sentences

[9] The Judge who sentenced Mr Barnes took a starting point of 18 months imprisonment on the burglary charge, which was the only charge Mr Barnes faced.⁵

Mr Barnes’ personal circumstances enabled the Judge to convert this to sentences of six months community detention and 150 hours community work. Mr Leabourn argues the sentences imposed on Mr Barnes have created an unacceptable disparity between the sentences imposed on co-offenders, and that Mr Benner’s sentence should be reduced to reflect that fact.

[10] The desirability of consistency between sentences imposed on co-offenders who have committed similar offences rests on the proposition that any marked departure in sentencing levels without adequate reason “can result in injustice to an accused person and may raise doubts about the even-handed administration of justice”.⁶ Sometimes the test is described as being whether an independent and objective observer would consider that the disparity between sentences imposed on

_{co-offenders calls into question the administration of justice.}⁷

[11] It needs to be remembered, however, that the disparity argument in the present

case can only relate to the starting point selected in each case, and not the end sentences. As I have already recorded, the end sentences imposed on Mr Barnes were dictated by his personal circumstances, and these have no relevance to Mr Benner.

[12] Judge Gibson did not refer to the sentences imposed on Mr Barnes even though the sentencing notes relating to Mr Barnes were apparently provided to him when he

⁵ New Zealand Police v Barnes [2018] NZDC 19940.

⁶ R v Morris [1991] 3 NZLR 641 (CA) at 645.

sentenced Mr Benner. I consider, however, that Mr Leabourn’s submission on this point is answered in two ways. First, I consider there is a significant difference in culpability between Mr Benner and Mr Barnes. Mr Barnes’ principal role in the offending appears to have been to assist Mr Benner to gain entry into the victim’s premises. Thereafter, it was Mr Benner who was primarily responsible for the threats directed towards the victim. Mr Benner was also to be the recipient of any monies that were paid by the complainant in response to Mr Benner’s threats. I therefore consider a higher starting point was justified for Mr Benner than was the case for

Mr Barnes.

[13] Furthermore, in a sentencing context, two wrongs do not make a right.⁸ I consider an independent objective observer may well conclude the starting point adopted in relation to Mr Barnes was extremely, and perhaps unduly, lenient. An independent observer may also conclude that the administration of justice would be called into question if it permitted Mr Benner to receive the same, or even a similar, starting point to that selected in relation to Mr Barnes. It follows that the argument based on disparity fails.

Credit for guilty pleas

[14] The Judge gave the following reasons for applying a credit of just ten per cent for Mr Benner’s guilty pleas:⁹

[8] I also take into account the victim impact report. Overall, the Crown starting point of two and a half years, having regard to some of the cases brought to my attention, in particular Opetaia which was slight less serious because the injuries are not the same as were inflicted here, lead me to accept a two and a half year starting point. The plea came late and a 10 percent reduction for a guilty plea is generous in the circumstances, that is what the Crown contends for but I will not stand in the way of that.

[15] Mr Leabourn acknowledges Mr Benner could not ordinarily argue with a discount of ten per cent for pleas entered on the morning the trial was due to commence. He points out, however, that on the morning of the trial the Crown agreed to amend an existing charge of blackmail to a charge of demanding with menaces. The

⁸ Vaeafisi v R [2017] NZCA 545 at [22].

⁹ R v Benner, above n 2.

former has a maximum sentence of 14 years imprisonment compared with a maximum sentence of seven years imprisonment for the latter. In addition, and more importantly, the Crown agreed to withdraw a charge of attempting to pervert the course of justice. This charge related to earlier offending by another person against the victim of the present offending. Up until the morning of the trial the Crown had maintained Mr Benner was a party to that offending.

[16] Given these changes in circumstances on the morning of the trial I accept Mr Leabourn’s submission that a credit of more than ten per cent was warranted even though the likely penalty in relation to the blackmail charge would in all probability have been the same as that ultimately selected on the charge of demanding with menaces. I consider a credit of at least 15 per cent ought to have been given for guilty pleas notwithstanding the fact they were entered very late.

Did the Judge wrongly impose a cumulative sentence?

[17] On Mr Benner’s behalf, Mr Leabourn submits the Judge ought to have directed Mr Benner to serve the sentence imposed on the present charges concurrently with his original sentence of six years six months imprisonment. He says the imposition of a cumulative sentence has considerably lengthened the period of imprisonment Mr Benner will now be required to serve before being eligible to apply for parole.

[18] This submission overlooks the fact that the present charges relate to offending that was entirely separate in time, place and circumstance from the offending for which Mr Benner was already serving a sentence of imprisonment. For that reason a cumulative sentence of imprisonment was appropriate.¹⁰

[19] Furthermore, for the reasons that follow I do not consider the cumulative sentence should have resulted in Mr Benner being required to spend more time in prison before being eligible to apply for parole than would have been the case if he had received a concurrent sentence.

¹⁰ Sentencing Act 2002, s 84(1).

[20] Section 75(1)(b) of the Parole Act 2002 (the Act) provides that where cumulative sentences are imposed, they form a notional single sentence for the purpose of determining the non-parole period applicable in relation to an offender’s eligibility for parole. As at the date he was sentenced, Mr Benner was serving a sentence of five years six months imprisonment imposed on 23 May 2013 for drug offending. He was also serving a cumulative sentence of 12 months imprisonment imposed on the same date on a charge of being unlawfully in possession of a firearm. He was therefore serving a notional single sentence of six years six months imprisonment when he was sentenced on the present charges.

[21] The cumulative sentence of two years three months imprisonment imposed on the present charges increased the length of the notional single sentence to eight years nine months. The start date of a notional single sentence is the start date of the first sentence in the series of sentences that forms the notional single sentence.¹¹ Mr Benner has not been directed to serve a minimum term of imprisonment in relation to any of the sentences he has received. As a result, he was required to serve one-third of the notional single sentence, or two years 11 months, before being eligible to apply for parole.¹²

[22] Mr Benner was eligible to apply for parole on the original sentence of six years six months imprisonment on 23 March 2015 after serving two years two months, being one-third of the sentence. He ultimately served two years nine months imprisonment before being paroled on 22 September 2015. He was then recalled to prison on 13

April 2017 after committing the present offences. By the time Mr Benner was sentenced on the present charges he had served a further 15 months of his original sentence. This means he had served a total of four years of the original sentence of six years six months imprisonment.

[23] When the sentence imposed on the present charge was added to the original sentence, he was required to spend two years eleven months in prison before being eligible to apply for parole. Given the length of time he had already served, by my

¹¹ Parole Act 2002, s 77.

¹² Parole Act 2002, s 84(1).

calculations he became immediately eligible to apply for parole once he was sentenced on the present charges.

[24] By way of comparison, if the Judge had imposed a concurrent sentence on the present charges Mr Benner would have been required to serve one-third of that sentence before being eligible for parole in relation to it. This means he derived a significant advantage by receiving a cumulative sentence on the present charges rather than a concurrent sentence. This is often the result when a person serving an existing sentence of imprisonment receives a cumulative sentence for further offending.

[25] Furthermore, the date on which Mr Benner may be eligible for parole is unlikely to be of any practical significance in terms of when he is actually released. His suitability for release on parole will inevitably be affected by the fact that he committed these offences after he had been paroled on his original sentence. The parole authorities are unlikely to consider Mr Benner for parole again until they are satisfied he no longer poses a risk to the safety of the community.

Error in sentence

[26] During the hearing before me it transpired that the Judge’s intention to impose cumulative sentences on both charges has been thwarted by the wording of the final paragraph of his sentencing remarks:¹³

[9] So you will be sentenced to two and a half years, less 10 percent for pleading guilty, two years three months, which will be cumulative one existing sentences, that will be imposed for the demanding with menaces offence. And you will be sentenced to 18 months for the burglary, that will be a concurrent sentence of imprisonment and I will remit all your fines.

[27] I consider the Judge clearly intended to make the sentences imposed on the present charges concurrent with each other but cumulative on the sentence he was already serving. This is apparently not how the prison authorities have interpreted the Judge’s remarks. Mr Leabourn advises me that Mr Benner has been told he will not be eligible for parole until April 2019. The prison authorities evidently consider the

_{sentence imposed on the charge of demanding with menaces is to be served}

¹³ R v Benner, above n 2.

cumulatively on his original sentence but the sentence imposed on the burglary charge is to be served concurrently with the original sentence. The practical effect of this interpretation is that Mr Benner will be required to serve one-half of the sentence imposed on the burglary charge.¹⁴

[28] In order to correct this error I propose to quash the concurrent sentence imposed on the burglary charge and replace it with a cumulative sentence on that charge.

Result

[29] The appeal against sentence is allowed to the extent that the cumulative sentence of two years three months imprisonment imposed on the charge of demanding with menaces is reduced to one of two years one month.

[30] In addition, I quash the sentence of 18 months imprisonment imposed on the burglary charge and replace it with a sentence of 18 months imprisonment to be served concurrently with the sentence imposed on the charge of demanding with menaces but cumulatively on the original sentence of six years six months imprisonment.

Lang J

Solicitors:

Crown Solicitor, Auckland

_{H B Leabourn, Barrister, Auckland}

14. Mr Benner is entitled to automatic release after serving one-half of that sentence because it is less than two years in length: Sentencing Act 2002, s 86(1).