Bennett v Police

[2020] NZHC 3220

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-90

[2020] NZHC 3220

BETWEEN

JOHN ROBERT BENNETT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 December 2020
Appearances:	R Weir for the Appellant A Gray for the Respondent
Judgment:	7 December 2020

ORAL JUDGMENT OF GORDON J

Solicitors:           Crown Solicitor, Hamilton Counsel:   R Weir, Hamilton

BENNETT v POLICE [2020] NZHC 3220 [7 December 2020]

Introduction

[1]    The appellant, John Bennett, was sentenced to eight months’ imprisonment on 8 September 2020 in the Hamilton District Court1 having pleaded guilty to one charge of driving while impaired with blood that contained evidence of use of qualifying drugs.2 He was also disqualified from driving for 12 months and one day. Mr Bennett had three previous convictions for driving with excess breath alcohol.3

[2]    Mr Bennett now appeals against his sentence on the basis that an insufficient discount was given for his personal circumstances.

Background

[3]    On 6 September 2019, at about 10.45 pm, Mr Bennett was driving his car on State Highway 1 near Cambridge. There had been an accident which Police were attending. Mr Bennett stopped near the crash scene and was spoken to by the Police due to the manner of his driving. He was required to complete a compulsory impairment test and the result led to the taking of a blood specimen. Testing found his blood contained methamphetamine and THC (the principal psychoactive compound in cannabis).

[4]    At his first appearance on 15 November 2019, Mr Bennett was remanded on bail. On 19 December 2019, he pleaded not guilty to the charge. Following several breaches of bail conditions, Mr Bennett was remanded in custody on 8 April 2020. On 8 July 2020, he pleaded guilty to the charge and was remanded in custody.

District Court decision

[5]    The Judge noted Mr Bennett’s prior convictions, including Youth Court notations, and said that it was his third conviction for impaired driving. He adopted a starting point of 10 months’ imprisonment. He identified three matters on which discounts were sought: guilty plea; post-traumatic stress disorder (PTSD) (based on a

1      Police v Bennett [2020] NZDC 18417.

2      Land Transport Act 1998, s 57A(1). Maximum penalty: three months’ imprisonment or a fine not exceeding $4,500; mandatory disqualification period: at least six months.

3      Land Transport Act 1998, s 57A(3). Maximum penalty: two years’ imprisonment or a fine not exceeding $6,000; mandatory disqualification period: at least one year.

letter from a counselling service); and, remorse coupled with a willingness to engage in rehabilitation. The final sentence was eight months’ imprisonment, representing a discount of 20 per cent on the starting point.

Approach on appeal

[6]    Section 250(2) of the Criminal Procedure Act 2011 provides that the appeal must be allowed if there has been an error in the sentence imposed and a different sentence should have been imposed. While there is no mention in s 250(2) of a “manifestly excessive” sentence being a ground of appeal, it is consistent with the statutory language and “there is no reason not to use it when considering s 250(2)”.4 Mr Bennett must show that an error occurred in sentencing and that this error resulted in a sentence which was outside the range or otherwise not justified by accepted sentencing principles.5

Submissions

Appellant’s submissions

[7]    Mr Weir, for Mr Bennett, submits that the Judge did not appropriately provide for Mr Bennett’s personal circumstances in the sentence because discounts for post- traumatic stress disorder or remorse were not enumerated. Mr Weir submits that the 20 per cent discount given was for the guilty plea and that the Judge should have given an additional 10 per cent discount for personal factors and a five per cent discount for remorse.

Respondent’s submissions

[8]    Ms Gray, for the respondent, submits the Judge correctly assessed the discount for guilty plea in all the circumstances and for personal circumstances and remorse. The final sentence was not  manifestly  excessive  given  the  recidivist  nature  of  Mr Bennett’s offending.

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

5      Ripia v R [2011] NZCA 101 at [15].

Discussion

[9]    The Judge did not specify an individual discount for any of the factors referred to him. Mr Weir’s submission that the 20 per cent discount reduction was made just for Mr Bennett’s guilty plea is optimistic in the circumstances. Mr Bennett’s guilty plea was not early and the case against him was very strong, a point the Judge remarked on. Based on the dates set out above, and noting that Mr Bennett had initially entered a plea of not guilty, the guilty plea came eight months after the offending as the parties were preparing for a judge alone trial.6 A 20 per cent reduction simply could not be justified.

[10]   In these circumstances, it appears that the discount of 20 per cent was a global one, taking into account all of Mr Bennett’s personal circumstances.7 The Judge acknowledged three factors, relied on by Mr Bennett: a guilty plea; the letter regarding counselling for PTSD; and remorse coupled with Mr Bennett’s recognition of a need for rehabilitation.

[11]    The letter from Male Support Services Waikato, relied on by Mr Bennett, records that he has attended counselling for a number of years to support him with PTSD and other impacts from historical sexual offending against him. To that extent, I accept Mr Weir’s submission that the Judge was incorrect to state that the reason for PTSD was unknown. However, there is no effort to make a causative link, between PTSD and the trauma mentioned, to the offending or with any hardship Mr Bennett might experience in prison. In such circumstances limited credit can be given for these personal circumstances.

[12]   As to remorse, Mr Bennett refers to the following comments in the pre- sentence report:

Mr Bennett expressed his regret and remorse for his offending stating it was a stupid decision and mistake. He stated that he is willing to make amends by complying with any conditions imposed on him by the Court and he agreed he could benefit from rehabilitative programmes.

6      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].

7      Compare Moses v R [2020] NZCA 296 at [46].

[13]   Against the background of recidivist offending, limited recognition could be given for remorse. The Judge did acknowledge that a rehabilitative programme would be of benefit to Mr Bennett.

[14]   Having regard to all the above matters, I take the view that Mr Bennett was entitled to a discount of 10 per cent for guilty plea, leaving 10 per cent for personal circumstances, incorporating limited recognition for the PTSD referred to in the counsellor’s letter and his remorse coupled with prospects for rehabilitation.

[15]   There was no error in the sentence settled on by the Judge, which took into account all the relevant factors. The end sentence was not manifestly excessive.

Result

[16]The appeal is dismissed.

Gordon J