R v Benbow

[2009] NSWSC 1472

CITATION:	R v Benbow [2009] NSWSC 1472
HEARING DATE(S):	20 November 2009
JUDGMENT DATE :	20 November 2009
JUDGMENT OF:	R A Hulme J
DECISION:	Sentenced to imprisonment for 7 years 6 months with a non-parole period of 4 years 6 months.
CATCHWORDS:	CRIMINAL LAW - Sentence - Manslaughter - unlawful and dangerous act - deceased beaten with cricket bat - intoxication - spontaneous act - on bail - plea of guilty
CATEGORY:	Sentence
PARTIES:	Regina Craig William BENBOW
FILE NUMBER(S):	SC 2008/15378
COUNSEL:	Mr P Cattini (Crown) Mr G Scragg (Offender)
SOLICITORS:	Solicitor for Public Prosecutions Aitken Macdonald

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

R A Hulme J

20 November 2009

2008/15378 R v Craig William BENBOW

JUDGMENT

1 HIS HONOUR: On 14 September 2009 Craig William Benbow was arraigned and entered a plea of not guilty to the offence of murder but guilty to the offence of manslaughter. The Crown accepted that plea of guilty in full satisfaction of the indictment. I note that the maximum penalty for the offence of manslaughter is imprisonment for twenty-five years.

2 The facts in respect of the matter are set out in a document which is exhibit A before me and they are not in dispute. I will quote from the document in part. During the evening of 28 October 2007 Travis Jennings was drinking with Craig Benbow and Lucas Collis at the rear of the unit occupied by Mr Collis at 4/655 Dight Street Albury. They were all drinking heavily. Around 9.30pm they were inside the unit when the offender fell asleep on Mr Collis’ bed. Mr Collis asked Mr Jennings to rouse the offender. Mr Jennings grabbed a cricket bat and prodded the offender’s arm two or three times. The offender woke up and pulled the bat away from Mr Jennings. The offender then got up from the bed and swung the bat at Mr Jennings, striking him on the left side of the head causing him to fall to the floor. The offender continued to hit Mr Jennings to the head and torso with the cricket bat.

3 Mr Jennings crawled out of the lounge/bedroom of the unit and down several steps outside the unit. The offender followed Mr Jennings and continued to strike him on the head with the cricket bat. Mr Jennings crawled to the bottom of the steps and was lying on the footpath whilst the offender continued to strike him to the head with the cricket bat. Mr Collis said to the offender, “What the fuck are you doing?” The offender turned around and struck Mr Collis on the left forearm with the cricket bat.

4 Mr Collis went inside the unit and obtained a wooden stick. He went back outside and attempted to strike the offender with the stick. The offender turned around and used the bat to hit the stick out of Mr Collis’ hands. He then struck Mr Collis to the head and ribs with the cricket bat. Mr Collis ran back into the unit and locked the door. From inside the unit he saw the offender continue to strike Mr Jennings to the head with either the bat or the stick.

5 A resident of the units, Mr Damien Bennett, was asked for assistance by Mr Collis. Mr Collis and Mr Bennett called triple-O and ambulance and police personnel subsequently attended the unit. The ambulance personnel found that Mr Jennings was unresponsive to treatment and attempts at resuscitation were made. He was subsequently conveyed to Albury Base Hospital before being transferred to Royal Melbourne Hospital. He did not regain consciousness and was pronounced dead on 2 November 2007. An autopsy was conducted at the Victorian Institute of Forensic Medicine the following day. Dr Stephen Cordiner noted head injuries as the cause of death and he concluded that these injuries were suggestive of the “broader application of blunt force”.

6 Forensic testing was conducted on a number of items recovered from the crime scene. Mr Jennings’ DNA in the form of blood stains was recovered from the tee-shirt worn by the offender, the Adidas runners that he wore and also on the shorts that he was wearing.

7 The offender participated in a police interview subsequent to his arrest on 28 October 2007 in which he said he remembered nothing as a result of an alcohol induced “blackout”. He confirmed that he had been drinking with Mr Collis and Mr Jennings prior to the incident.

8 Mr Jennings’ DNA was also recovered from the tip of the piece of wood that Mr Collis said he had attempted to use to stop the offender from striking Mr Jennings. The cricket bat was found inside Mr Collis’ unit. There was no blood staining visible upon it.

9 Police found amongst the offender’s property some receipts which indicated that he had purchased a two litre flagon of sherry at noon on the day of the incident and then a further 750 millilitre bottle of the same at 5pm. He told the police that he had had four Serapax tablets of 30 milligrams each, although the person who apparently supplied those tablets to him believed that it was only two. In addition to the Serapax and the sherry it is apparent that the offender had also consumed some wine.

10 The facts go on to indicate it is likely that the offender consumed somewhere between one and a half to one and three-quarters of a litre of sherry plus the wine supplied by Mr Collis in addition to the Serapax that he had consumed. It was the opinion of a forensic scientist that the offender would have had a blood alcohol content somewhere between 0.245 and 0.311 with the effects of the alcohol exacerbated by the Serapax. The Crown appears to accept that the level of intoxication substantially impaired the offender’s ability to reason and it was upon that basis that the plea of guilty to manslaughter was accepted.

11 In addition to the offence of manslaughter to which the offender has pleaded guilty he has also today pleaded guilty to an offence of assault occasioning actual bodily harm in respect of Mr Collis and I am called upon to sentence him in respect of that offence as well.

12 The offender was born on 11 February 1978 and so he was aged twenty nine at the time of the offence and he is thirty-one now.

13 He has a criminal history that commenced when he was aged seventeen. He has a number of offences on his record which were committed in Victoria between 1995 and, it would appear, the year 2000. They comprise offences of property damage, behaving in an offensive manner in public, being drunk in a public place, possession of a weapon, possession of a drug and a number of matters of burglary, theft, receiving and obtaining property by deception. He was imprisoned for the first time in 1997 at the age of nineteen. There was an offence of intentionally causing injury for which he was sentenced to imprisonment in 1998.

14 In New South Wales he has a number of convictions. They include further dishonesty offences. Of particular note, in 2004 he was sentenced to nine months imprisonment for assault occasioning actual bodily harm, assault, and entering a building with intent. A three month non-parole period was set and it was a condition of his parole that he accept the supervision of the Probation and Parole Service and attend and complete such counselling programs and courses as recommended.

15 He was sentenced to imprisonment again on 22 November 2005 for a term of seven months although execution of that sentence was suspended upon him entering into a bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 and that was for offences of common assault. There were similar conditions of the bond in relation to accepting supervision and attending and completing counselling and courses. On 29 October 2007, the day following his arrest for the matters for which he is to be sentenced today, he was sentenced to three months imprisonment for an offence of damaging property and an offence of contravening an apprehended domestic violence order.

16 I have heard submissions this morning in relation to how I should access the offender’s record of previous convictions. Certainly it is the case that I am not to impose any additional punishment upon him for those past offences. The sentence I impose must retain an appropriate relativity with the objective seriousness of the offence. The submission was made on the offender’s behalf, and I accept, that it is not established that the offender has a history of becoming intoxicated and then committing crimes of violence. Nevertheless, given the number of offences on the offender’s record and the relatively lengthy period over which he has offended I am of the view that his record indicates a continuing attitude of disobedience to the law such that considerations of retribution and personal deterrence must receive greater emphasis when he is sentenced for the present matter.

17 The background of the offender is well set out in a report of Dr Suzette Sowden, a clinical psychologist. I will not refer to every aspect of the report, although I have taken it all into account, but it includes the following. The offender was the eldest of three children. His mother left his father when he was two or three years old in order to escape the impact of his father’s reported alcoholism. The offender struggled with his schooling and he left school halfway through year 10. He has a drug and alcohol abuse history which commenced when he was fourteen years of age when he commenced smoking marijuana. At age twenty-one he commenced taking morphine, amphetamines and benzodiazepines. He has had what I accept is a relatively good history of employment despite his drug and alcohol addictions. It is indicated by Ms Sowden that his criminal history appears to relate to his drug and alcohol abuse and also to difficulties that he experienced within the relationship with his wife who I accept suffered from a mental illness.

18 Ms Sowden reports that the offender has only just recently identified the need to address his longstanding substance abuse disorders. She reports that he appeared to her at least to be between the “pre contemplative to preparation stage of addressing his drug and alcohol abuse”. She also reports that he had an adolescent history of some behavioural difficulties and developed a mild antisocial personality tendency in his adult years. Ms Sowden endeavoured to make a diagnosis by reference to DSMIV and in the course of that she expressed the conclusion that the offender appeared to suffer from some symptoms of anxiety and depression and had a long history of substance use disorder, and there was also, as I have mentioned, the appearance of mild antisocial personality tendencies. Ms Sowden indicates that the offender is not mentally ill although he does have a history of anxiety in the form of panic attacks and paranoid thoughts. The other material tendered before me this morning supports the proposition that the offender does have a history of anxiety, depression and, on occasions, panic attacks.

19 On the topic of rehabilitation Ms Sowden expressed the opinion that without significant support the offender’s rehabilitation may result in relapse in relation to this drug and alcohol use with him continuing to mix with people with pro criminal and pro drug and alcohol attitudes. She reported that the offender himself expressed concern about the success of his rehabilitation without the receipt of significant support. However, later in her report she indicated that the offender appeared ambivalent about being rehabilitated with him indicating a degree of anxiety about returning to society. She recommended that the offender have an extended parole period. She recommended that he be required to undergo psychological counselling, that he undergo drug and alcohol counselling, that he be encouraged to engage in a training program to facilitate his capacity to re enter the workforce, that he has regular drug and alcohol screening, and that he have frequent meetings with his parole officer. She also indicated that it is important that he is encouraged to mix with people who have anti criminal attitudes and she recommends that he be required to undergo a drug and alcohol rehabilitation program. I include all of those aspects of her recommendation in my sentencing remarks so that they are available for consideration by the Parole Authority in due course.

20 The starting point for considering the imposition of sentence for an offence of manslaughter is that the offence involves the felonious taking of the life of a human being. I have before me two victim impact statements, one by each of the deceased’s parents. I have read and re read those statements and I am thankful for Mrs Jennings having read her statement out to the court earlier this morning. Whilst the law provides that it is impermissible for me to take into account the effect that the offence has had upon the family and friends of the deceased I do acknowledge the grief and the loss that they have suffered and I extend to them my condolences.

21 In assessing the objective seriousness of the offence I take into account all of the circumstances as disclosed in the statement of facts. To be noted in particular are a number of matters. First, that the offence was not planned. It was spontaneous and irrational and unreasonable in reaction to being prodded by Mr Jennings in his attempt to arose the offender from his drunken stupor. I accept that the offender was significantly intoxicated as the Crown indicates its acceptance in the statement of facts. Another matter is that there was a weapon used, that is the cricket bat, and it was used obviously with lethal effect. The use of a weapon, I must hasten to add, in the commission of crimes of murder and manslaughter is not an unusual feature and so in terms of it being regarded as an aggravating feature it has little bearing on the matter. This is not a case, it must be observed, where the offender was carrying the weapon or went to obtain it, as can be seen in a number of other cases of manslaughter by the use of a weapon. Rather, in this case, it was a case of the offender simply seizing upon the instrument that Mr Jennings had used to prod him to try and waken him.

22 It was submitted that I could conclude that the offender was experiencing a panic attack. I have earlier indicated my acceptance that he has a history of experiencing such attacks. There is, however, no evidence from which I could conclude that that was indeed operative at the time of the offence. It would be rather speculative for me to take that into account in my assessment of the objective seriousness of the offence and I do not do so.

23 It was submitted that another matter I could take into account was that there was an element of provocation, although Mr Scragg, who appeared on behalf of the offender, did not seek to make a great deal of that issue. I do not accept in any event that the offender was provoked. It was he who initiated the violence. What Mr Jennings did could not be regarded as an act of violence or provocation by any means.

24 I take into account also that it was a sustained attack as the Crown has submitted. It commenced in the bedroom of the premises and proceeded to the area outside the premises. Mr Jennings was literally bludgeoned to death with this cricket bat. Unlike some other forms of manslaughter I accept in this case that there was no specific intent to kill or inflict grievous bodily harm upon Mr Jennings but it must be noted that the absence of a factor that would make the offence more serious does not operate to reduce the seriousness of the offence.

25 Mr Scragg submitted in terms of the objective seriousness of the offence overall that it should be assessed as falling at the lower end of the range. I do not accept that submission. This is, in my consideration, a serious form of manslaughter by the commission of an unlawful and dangerous act.

26 Another matter that I must take into account in the assessment of sentence, although it’s not relevant to the assessment of objective seriousness, is that the offence was committed whilst the offender was on bail for other criminal offences and that is well recognised under the law as a serious aggravating feature.

27 The offender’s plea of guilty was entered on the day of the second listing for trial of this matter. There was some contention between the parties as to the degree to which I should discount the sentence to reflect the utilitarian value of the offender’s plea. I accept that the offender has no recollection of the events. It would seem that the plea came after the Crown disclosed to the offender’s representatives some further evidence by way of DNA that, as it appears from what the Crown Prosecutor told me this morning, substantially strengthened the Crown case that would have been presented at trial. On the one hand Mr Scragg submitted that the discount should be towards but not at, he conceded, the top of the range indicated in the guideline judgment of R v Thomson v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, whereas the Crown submitted that it should fall around the middle of that range. I accept that the plea indicates that the accused has accepted responsibility for his actions but in assessing the utilitarian benefit of the plea I am proposing to proceed as the Crown has conceded. Ordinarily when a plea of guilty is entered on the day of trial there should be an expectation of a discount of no more than 10 per cent but, as I said, I will accept and proceed upon the concession made by the Crown Prosecutor.

28 A submission was made that I should find that the offender is remorseful for his offending conduct. The only material from which such a conclusion could be drawn is the offender’s plea of guilty. There is nothing in the report of Dr Sowden as to anything the offender said to her that would support such a finding. I have not heard any evidence from the offender himself in these sentence proceedings. In my view the plea of guilty itself is an insufficient basis to support a conclusion of remorse and absent any evidence from the offender himself I am not prepared to make a finding in his favour in respect of that topic.

29 It was submitted that the offender was not fully aware of the consequences of his actions because of a disability. I accept that the offender had a history, as I have indicated, of experiencing anxiety and depression and panic attacks but I am not persuaded that they were operative and had any bearing upon the commission of the offence and so I do not accept that submission.

30 I do accept on the other hand that it appeared to Dr Sowden that the offender was below average in his intelligence, although it must be noted that this was not to a degree that affected his level of functioning within the community in any significant degree. I accept that he had an upbringing that had a number of unsatisfactory features. I reiterate that I accept that he has a reasonable history of employment. I accept also that he had successfully rehabilitated himself in the past from an opiate addiction and that he has expressed a desire to engage in processes that would promote his rehabilitation in the future.

31 Mr Scragg provided me with a schedule of cases involving sentencing for manslaughter. I do not propose to refer to any individual case. What emerges from those cases in the schedule provided, and from my understanding of sentencing generally for this offence, is that there is no identifiable range to which I can have recourse in assessing the appropriate sentence in this case. The maximum penalty indicates the degree of seriousness with which Parliament regards the offence of manslaughter generally. The circumstances in which the crime of manslaughter can be committed are extremely wide but the maximum penalty is one thing to bear in mind. The assessment of the sentence in this case apart from that must be determined by an assessment of the objective circumstances of the offence itself and those features which I have referred to which are personal to the offender.

32 The offender was arrested on 28 October 2007 and has been in custody since that date. He was sentenced on 29 October 2007 to concurrent fixed terms of imprisonment for three months for the offences for which he was on bail at the time of the commission of the offences with which I am concerned. I have given consideration to the submissions that have been made as to whether I should order the sentence I impose to be concurrent or partially accumulative or completely accumulative upon those sentences. In my final view I have determined that it would be appropriate to accumulate the sentence completely, having regard to the fact that they were completely unrelated offences to the ones for which the offender is presently before the court.

33 The offender is to be sentenced for the assault upon Mr Collis as well but having regard to the principle of totality it would be appropriate to order that the sentence for that offence be concurrent and therefore subsumed within the sentence I impose for the offence of manslaughter.

34 I accept the submission by Mr Scragg that there are special circumstances for reducing the proportion of the sentence to be represented by the non parole period. Those special circumstances are the need for the offender to engage in rehabilitation and there is a need for him to be closely supervised over an extended period of time by the officers of the Probation and Parole Service in order to facilitate and increase the prospect of such rehabilitation being successful. Such parole supervision, I would expect, would place emphasis upon the need for drug and alcohol rehabilitation as well as anger management and the psychological factors referred to in the report of Dr Sowden.

35 Mr Benbow would you please stand up. For the two offences to which you have pleaded guilty you are convicted. For the offence of assault occasioning actual bodily harm you are sentenced to imprisonment for a fixed term of three months. That sentence is to date from 28 January 2008 and expire on 27 April 2008.

36 For the offence of manslaughter you are sentenced to imprisonment comprising a non-parole period of four years and six months and a balance of the term of the sentence of three years. That sentence will take effect from 28 January 2008 and you will be eligible for release on parole on the expiration of the non parole period on 27 July 2012. That is a total sentence of seven years and six months. Without your plea of guilty it would have been a sentence of nine years.

37 I dismiss the backup charge under s 33 of the Crimes Act 1900.

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