The King v Benning

Case [2022] NTCCA 15

CITATION:The King v Benning [2022] NTCCA 15

PARTIES:THE KING

v

BENNING, Troy

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 2 of 2022 (22011379)

DELIVERED:  21 September 2022

HEARING DATE:  2 June 2022

JUDGMENT OF:  Southwood, Kelly and Barr JJ

CATCHWORDS:

CRIME – Appeals – Crown appeal against sentence – whether sentence was manifestly inadequate – whether sentencing Judge erred in assessment of the objective seriousness of the offending – whether sentencing Judge failed to have sufficient regard to the need for greater accumulation – whether the overall sentence imposed failed to reflect the gravity of the offending – appeal allowed – respondent resentenced

Criminal Code Act 1983 (NT), s 414(1)(c)

Arnott v Blitner [2020] NTSC 63; Carroll v The Queen (2011) 29 NTLR 106; Director of Public Prosecutions (Vic) v Hermann (2021) 290 A Crim R 110; Everett v The Queen [1994] HCA 49, 181 CLR 295; Forrest v The Queen [2017] NTCCA 5, Griffiths v The Queen [1977] HCA 44, 137 CLR 293; House v The King [1936] HCA 40, 55 CLR 499; Muldrock v The Queen [2011] HCA 39, 244 CLR 120; The Queen v BJW [2000] NSWCCA 60, 112 A Crim R 1; The Queen v EG [2022] NTCCA 10; The Queen v Hitanaya [2010] NTCCA 3; The Queen vKahu-Leedie [2022] NTCCA 4; The Queen v Mossman [2017] NTCCA 6; The Queen v O’Connor [2014] NSWCCA 53, 239 A Crim R 487; The Queen v Osenkowski (1982) 30 SASR 212; The Queen v Pham (2015) 256 CLR 550; The Queen v Riley [2006] NTCCA 10, 161 A Crim R 414; The Queen v Roe [2017] NTCCA 7; The Queen v Simpson [2020] NTCCA 9; The Queen v Tuuta [2014] NSWCCA 40; The Queen v Verdins (2007) 16 VR 269; The Queen v Wilson [2011] NTCCA 9; Whitlock v The Queen [2018] NTCCA 7, referred to

REPRESENTATION:

Counsel:

Appellant:V Engel

Respondent:  A Abayasekara

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:    B

Number of pages:  64

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The King v Benning [2022] NTCCA 15

No. CA 2 of 2022 (22011379)

BETWEEN:

THE KING

Appellant

AND:

TROY BENNING

Respondent

CORAM:    SOUTHWOOD, KELLY and BARR JJ

REASONS FOR JUDGMENT

(Delivered 21 September 2022)

SOUTHWOOD J:

Introduction

  1. On 23 February 2021, the respondent pleaded guilty to the following 10 counts on an indictment dated 22 February 2021.

    Count 1:Aggravated unlawful entry of a dwelling house at night-time while armed with an offensive weapon with the intention of committing a robbery therein contrary to s 213(1), (3), (4), (5) and (6) of the Criminal Code 1983 (NT). The maximum penalty for this offence being…

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AGLC
The King v Benning [2022] NTCCA 15
Case
[2022] NTCCA 15
Decision Date

CaseChat Overview and Summary

The King, represented by the Crown, appealed against the sentence imposed on the respondent, Benning, by a sentencing judge. The appeal concerned the adequacy of the total effective sentence of seven years imprisonment, with a non-parole period of four years, which Benning received for ten offences, including sexual intercourse without consent, attempted sexual intercourse without consent, aggravated unlawful entry, aggravated assault, deprivation of liberty, making a threat to kill, unlawfully causing serious harm, and stealing.

The legal issues before the Court of Appeal were whether the sentencing judge erred in assessing the objective seriousness of the offending, failed to give sufficient regard to the need for greater accumulation of sentences, and whether the overall sentence imposed failed to reflect the gravity of the respondent's conduct. The Crown argued that the sentence was manifestly inadequate.

The Court of Appeal, comprising Southwood, Kelly, and Barr JJ, found that the individual sentences imposed for several counts, specifically counts 1, 2, 4, 6, 7, 8, and 9, were manifestly inadequate. While acknowledging that the sentencing judge had considered the principles in *Verdin* and *Bugmy* which mitigated the respondent's moral culpability and reduced the weight given to general and specific deterrence, the Court determined that these considerations did not justify the leniency of the original sentence. The Court highlighted the premeditated nature of the aggravated unlawful entry, the respondent's use of a dangerous weapon (scissors), his disguise, and the particular vulnerability of the victim, all of which contributed to a high degree of moral culpability. The Court also noted the significant emotional and psychological harm suffered by the victim, as evidenced by her victim impact statement.

The appeal was allowed. The sentences imposed for counts 1, 2, 4, 6, 7, 8, and 9 were quashed, and the respondent was to be resentenced. The sentences imposed for counts 3, 5, and 10 were confirmed as appropriate and proportionate.

Orders

Orders of the court

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Background

Background to the litigation

What reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence.[10]The facts The respondent is a 26-year-old male. He was 25 when he committed the offences that are the subject of this appeal. The victim is a 39-year-old female. The respondent and the victim were unknown to each other. Prior to committing the counts on the indictment, the respondent consumed methamphetamine. The victim resided at [redacted] with her two children who were aged 10 and 4 respectively. Her unit is located on the first level of the block of units. The respondent was armed with a pair of scissors and carried a Woolworths shopping bag with two eyeholes cut in it. He gained access to a secure courtyard attached to the block of units and he saw the victim inside her unit. She was in the kitchen baking food that was to be sold at the markets. Her two children were asleep in the victim’s bedroom. The respondent formed the intention to unlawfully enter the victim’s unit and rob her. He climbed a downpipe leading to the balcony of her unit and entered the unit through the unlocked balcony door. Before entering the unit, he placed the Woolworths bag over his head and held the scissors in one of his hands. The victim was cracking eggs into a mixer and she turned to discover the respondent in her home. She asked the respondent what he was doing in her unit. The respondent took the bag off his head and began pushing the victim in the direction of her bathroom. He asked her where her money was and who was in the unit. The victim said that she did not have any money and just her and her two children were in the unit. The respondent began pushing the victim towards a bedroom and asked how old her children were. The victim asked the respondent what he wanted. He did not respond. A short time later, the respondent asked the victim to take off her pants. She refused. He then pushed her down the hallway by wrapping his arms around her while still holding the scissors and forcefully moving her to the entry to her daughter’s bedroom. The victim tried to punch the respondent. He forced her to the ground in her daughter’s bedroom and she struck him with a pink stool. The respondent smashed a glass picture frame over the victim’s head and kicked her in the nose. The victim’s nose bled and she felt immediate pain. The respondent also punched the victim in the head several times, as she continued to struggle with him. The victim was able to get to her feet and she begged for her life. The respondent pushed her backwards onto the bed in her daughter’s bedroom and told her to take off her pants. The victim lay on the bed dizzy from the assault. She said no. The respondent used the scissors he held to cut through the left side of the victim’s shorts before he pulled them and her underwear off. He pushed her legs apart and told her to open her legs. He removed parts of his clothing and exposed his penis. The respondent then used the scissors to cut off a piece of the Woolworths bag, which he wrapped around his penis. He then attempted to push his penis into the victim’s vagina. However, his penis was not erect and he was unable to insert his penis into her vagina.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I agree with their Honours Kelly and Barr JJ that there is nothing in the appeal to cause the Court to exercise its residual discretion and dismiss the appeal.Conclusion I would allow the appeal, quash the sentences imposed for counts 1, 2, 4, 6, 7, 8 and 9 and resentence the respondent. I would confirm the sentences imposed by the sentencing Judge for counts 3, 5 and 10.KELLY AND BARR JJ: This is a Crown appeal against sentence. On 23 February 2022, the respondent was sentenced to a total effective sentence of imprisonment for seven years, with a non-parole period of four years for ten offences:(a)two offences of sexual intercourse without consent;(b)two offences of attempted sexual intercourse without consent (one aggravated);(c)one offence of aggravated unlawful entry of a dwelling at night, armed, with intent to commit a robbery;(d)one offence of aggravated assault in which the female victim suffered harm, was unable to effectively defend herself and was threatened with an offensive weapon;(e)one offence of deprivation of liberty;(f)one offence of making a threat to kill;(g)one offence of unlawfully causing serious harm; and(h)one offence of stealing.Facts of the offending:Count 1 (unlawful entry): At about 12.20 am on 1 April 2020, the respondent gained access to the secure courtyard of the unit complex in Parap where the victim lived. The victim was up late, baking for her stall at the markets. Her two children (aged 10 and 4) were sleeping in her bedroom. The respondent saw the victim and formed the intention to unlawfully enter her unit and rob her. The respondent gained access to the victim’s unit by climbing up a drain pipe onto her balcony. He entered her home armed with scissors, wearing a plastic bag over his head with eyeholes cut into it.[17]Count 2 (aggravated assault): The victim turned to be confronted by the respondent. He pushed her backwards towards the bathroom and asked her where her money was and who else was in the house. The victim told the respondent that she didn’t have any money, and that it was only her and her children in the house.[18] The respondent then pushed the victim and asked her to take off her pants. She refused. The respondent pushed the victim by wrapping his arms around her body and forcefully moving her into the bedroom usually occupied by the victim’s young daughter (who was asleep nearby in the main bedroom). He was still holding the scissors. The victim tried to punch the respondent but he forced her to the ground in the bedroom. He was carrying scissors in one hand and the plastic Woolworths bag in the other. The victim tried to hit the respondent with a wooden stool in order to resist him. He then smashed a glass picture frame over the victim’s head, kicked her in the nose and punched her around the head several times with his fist, causing her pain and bleeding. The victim struggled and begged for her life. She managed to get to her feet and the respondent pushed her backwards onto the bed.Count 3 (attempted sexual intercourse without consent):

Ratio Decidendi

Legal Principle Established

As to whether the total sentence imposed by the sentencing Judge reflected the gravity of the whole of the respondent’s offending conduct, counsel for the respondent submitted that the sentencing Judge found that the Verdins and Bugmy issues that arise in this case mitigated the respondent’s moral culpability. Consequently, her Honour significantly reduced the weight attributable to general and specific deterrence. While protection of the community was an important consideration, this is a case where the aim of protection of the community could be achieved by the imposition of a sentence that encouraged the rehabilitation of the respondent in a way that specifically addressed his criminogenic needs. Consideration of all of the factors does not lead to the conclusion that the sentence imposed was manifestly inadequate.Consideration As to particular (i) of the appeal, I am satisfied that the individual sentences imposed for counts 1, 2, 4, 6, 7, 8, and 9 were manifestly inadequate. The sentences imposed for counts 3, 5 and 10 are appropriate and proportionate sentences. Count 1 is a particularly serious example of unlawful entry. The respondent’s moral culpability for this crime is high. It is so despite the application of the Verdins principles in this case. The offending was premeditated. The respondent set out on the night in question with the intention of unlawfully entering a dwelling house to obtain money. He armed himself with scissors, which are a very dangerous weapon, and cut eyeholes in a Woolworths bag so he could disguise himself. After the respondent entered the secure courtyard, he saw the victim, who is a small woman, and deliberately chose her to be the target of a robbery. Robbery is a serious crime. It involves the use or threats to use violence to any person in order to obtain the thing stolen, to prevent or overcome resistance to its being stolen or to prevent or hinder pursuit. At the time the respondent entered the victim’s unit, he had formed the intention to use or threaten to use violence against her to obtain what he was going to steal and to prevent pursuit. If a robber is armed with a dangerous weapon, he is liable to imprisonment for life. In her victim impact statement, the victim stated that she is a size 6, weighs 50 kilograms and is only 160 cm tall. The victim was especially vulnerable and the respondent was aware of her vulnerability. Before he entered the victim’s dwelling, the respondent placed the Woolworths bag over his head and he held the scissors in one of his hands. He deliberately chose to enter the room the victim occupied. Such offences cause great alarm in the community. This crime must have contributed to the emotional and psychological harm suffered by the victim. In her victim impact statement, she made the following remarks:It has been my nightmare ever since.I was scared to go to a place to call home.I tried my hardest to find another place for me and kids to move but there was no luck during that time.I wake up to any slightest noise.I needed to relocate my house, even just try to feel safe again.We needed to close our blinds and lock the house at 6 pm every day. It feels like he had taken our freedom away.All I ever want from a mother point of view are my kids to be safe. I want to be safe. I have every right to feel comfortable and safe in my own home.I am scared that he will come back and hurt me again...