Benner v The Queen - [2018] NZHC 2675

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]

Thisjudgment 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Benner v The Queen

Details

AGLC: Benner v The Queen [2018] NZHC 2675
Case: [2018] NZHC 2675
Decision Date: 17 October 2018

CaseChat Overview and Summary

The High Court of New Zealand was presented with an appeal by Hayden Steuart Benner against his sentence for burglary and demanding with menaces. The court was required to decide on several legal issues, including whether the starting point for the sentence was appropriate, whether there was a disparity in sentencing between Benner and his co-offender, whether sufficient credit was given for Benner's guilty pleas, and whether the sentence should have been imposed concurrently instead of cumulatively.

The court found that the starting point for the sentence was appropriate, as the offending was more serious than in a similar case, and there was no unacceptable disparity in sentencing between Benner and his co-offender, as the court found a significant difference in culpability between the two. Furthermore, the court found that a credit of more than ten percent should have been given for Benner's guilty pleas, considering the changes in circumstances on the morning of the trial. Lastly, the court found that a cumulative sentence was appropriate for the present charges, as they were separate in time, place, and circumstance from the offending for which Benner was already serving a sentence of imprisonment.

In summary, the court allowed the appeal against sentence, reduced the cumulative sentence imposed on the charge of demanding with menaces, and quashed the sentence imposed on the burglary charge, replacing it with a sentence to be served concurrently with the sentence imposed on the charge of demanding with menaces but cumulatively on the original sentence.

Orders