Bennett v Police
[2015] NZHC 2592
•21 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000253
CRI-2015-404-000254 [2015] NZHC 2592
BETWEEN JAMES MICHAEL BENNETT
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 5 October 2015 Appearances:
Laurence Herbke for the Appellant
Glyn Hughes for the RespondentJudgment:
21 October 2015
JUDGMENT OF MOORE J [Appeal against sentence]
This judgment was delivered by me on 21 October 2015 at 1:00pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
BENNETT v NEW ZEALAND POLICE [2015] NZHC 2592 [21 October 2015]
Introduction
[1] On 14 November 2014 James Michael Bennett was sentenced to community work, community detention and intensive supervision in the District Court at North Shore following the entry of pleas of guilty to 12 charges (“the first tranche”).
[2] Then, nine months later on 19 August 2015, he was sentenced on 21 charges to 29 months’ imprisonment (“the second tranche”).
[3] Because Mr Bennett had largely failed to meet the conditions of the sentence imposed on 14 November 2014 the sentencing on the second tranche also incorporated re-sentencing on the first tranche.
[4] Mr Bennett was sentenced to a total term of 33 months’ imprisonment.
[5] He now appeals that sentence on the grounds it was manifestly excessive.
The charges and the offending
The charges
(a) The first tranche
[6] The 12 charges on which Mr Bennett was sentenced on 14 November 2014 were as follows:
(a) obtaining by deception ($500 to $1,000); 1
(b) obtaining by deception (<$500 x 2);2
(c) causing loss by deception ($500 to $1,000);3
(d) shoplifting/theft (under $500 x 3);4
1 Crimes Act 1961, ss 240(1)(a) and 241(b): maximum penalty one year’s imprisonment.
2 Crimes Act 1961, ss 240(1)(a) and 241(c): maximum penalty three months’ imprisonment.
3 Crimes Act 1961, ss 240(1)(d) and 241)(c): maximum penalty three months’ imprisonment.
4 Crimes Act 1961, s 223(d): maximum penalty three months’ imprisonment.
(e) driving with excess breath alcohol (x 2);5 (f) breaching a sentence of community work;6 (g) breaching a condition of supervision;7 and (h) driving whilst suspended.8
[7] Mr Bennett was sentenced to 200 hours’ community work, six months’ community detention and 18 months’ intensive supervision. Mr Bennett all but completely failed to comply with the terms of his sentence. He did not comply with any of the conditions of the intensive supervision order. Of the 200 hours of community work ordered he undertook less than five hours. Of the sentence of community detention he remained on detention from the date of sentence until he removed the monitoring bracelet on 15 March 2015, four months later. He frustrated various attempts by Corrections to replace the bracelet by not presenting himself. Given his significant non-compliance Corrections applied for him to be re- sentenced. This appilcation was made on 20 March 2015 but for reasons which are not immediately apparent the application was not dealt with until Mr Bennett was sentenced on 9 August 2015 in relation to the second tranche of charges all of but one which were committed while he was subject to the community-based sentences.
(b) The second tranche
[8] After he was sentenced on 14 November 2014 and while he was subject to the community-based sentences by my calculation Mr Bennett committed a further
20 offences between 17 December 2014 and May 2015. On various dates during this period he pleaded guilty to these charges including one which pre-dated his sentencing on 14 November 2014. This was a charge of obtaining Samsung Galaxy
cell phones by deception.
5 Land Transport Act 1998, s 56(1): maximum penalty three months’ imprisonment.
6 Sentencing Act 2002, s 71(1)(a): maximum penalty three months’ imprisonment.
7 Sentencing Act 2002, s 70(b): maximum penalty three months’ imprisonment.
8 Land Transport Act 1998, ss 32(1)(c) and 32(3): maximum penalty three months’ imprisonment.
[9] On 30 June 2015 he made his first appearance on a charge of obtaining by deception. He was given bail. He committed a number of further offences while on bail.
[10] The details of the charges contained in the second tranche are set out below:
(a) on 23 September 2013 he obtained Samsung Galaxy cell phones by deception;
(b) on 17 December 2014 he stole $40 petrol from Z, Albany;
(c) on 20 December 2014 he stole $71 petrol from Mobile, Albany;
(d) on 22 December 2014 he drove while disqualified (first or second);
(e) between 1 January 2015 and 3 May 2015 he obtained and used ASB
cheque account forms for pecuniary advantage (x 4);
(f) on 9 January 2015 he was found in possession of an offensive weapon
(knife);
(g) on 12 January 2015 he stole $3.88 of goods from New World, Albany; (h) on 23 January 2015 he obtained $208 by deception (fraudulent sale of
a cellphone to a 16-year old student);
(i)on 26 January 2015 he stole $38 of goods from The Warehouse, Albany;
(j)between 4 February 2015 to 29 April 2015 he breached community work;
(k) on 10 March 2015 he failed to answer District Court bail;
(l)between 10 March 2015 to 19 March 2015 he breached community detention;
(m) on 7 April 2015 he drove while disqualified (first or second); (n) on 7 April 2015 he provided false particulars; and
(o)between 3 May 2015 to 6 May 2015 he used ASB cheques to obtain a pecuniary advantage (x 4).
[11] The total sum stolen or defrauded by Mr Bennett in relation to the second tranche would appear to be in the order of $5,000. Of that sum $3,091 was fraudulently obtained in the course of Mr Bennett committing the six offences of obtaining by deception. A number of the dishonesty charges relate to unsuccessful attempts to obtain funds.
District Court sentencing decision
[12] The Judge commenced his sentencing remarks in relation to the second tranche of charges. He noted that Mr Bennett had first appeared on 30 June 2015 on the charge of obtaining $208 by deception when he purported to sell a cell phone over the internet to a 16-year old student but never delivered it. His Honour pointed out that this was only the beginning of his “crime spree”. He noted Mr Bennett had been released on bail on that charge and while on bail had committed, by the Judge’s calculation, further offences comprised in the second tranche. He noted that at the time of the offending Mr Bennett was subject to the sentence imposed on
14 November 2014 in relation to a total of 12 charges including offences of dishonesty, breaches of sentence and driving while disqualified.
[13] The Judge described Mr Bennett’s response to that sentence as little short of appalling noting that he did not comply at all with the intensive supervision sentence, undertook only about five hours of the 200 hours community work ordered and completed just four months of the six month community detention sentence before he removed the bracelet.
[14] His Honour recorded the submissions made on Mr Bennett’s behalf seeking home detention. In rejecting that submission his Honour noted that a deterrent sentence was called for; one which denunciated his conduct and which would instil in Mr Bennett a sentence of responsibility. He commented that even if home detention had been available in terms of an end sentence he would not have imposed it given Mr Bennett’s lengthy criminal history and chronic failure to comply with Court orders.
[15] Taking the six charges of obtaining by deception as the lead offences, the Judge set a starting point of 18 months’ imprisonment. This was uplifted by nine months to take into account the totality of his other varied offending to which a further uplift of six months was made to reflect his long list of previous convictions and the fact that much of the offending had been committed while Mr Bennett was on bail and while subject to sentence. From a provisional sentence of 33 months the Judge applied a 15 per cent discount in recognition of Mr Bennett’s pleas of guilty, noting that a full discount was not available because he had offended on bail. This brought the sentence to 29 months on the second tranche.
[16] The Judge then considered Correction’s application for re-sentencing and the cancellation of the other sentences which Mr Bennett had not completed. The Judge noted that in his view the appropriate sentence for the second tranche had to be one of imprisonment; that no electronically monitored sentence was appropriate having regard to Mr Bennett’s poor response and compliance to such sentences in the past. He thus imposed a further four months’ imprisonment cumulative on the 29 months resulting in an end sentence of 33 months’ imprisonment which he noted was appropriate having regard to the totality principle.
Approach to appeal
[17] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[18] In any other case, the Court must dismiss the appeal.9
[19] The Court of Appeal in Tutakangahau v R has recently confirmed that s
250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957.10 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.11
[20] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:12
(a) There must be an error vitiating the lower Court’s original sentencing
discretion: the appeal must proceed on an “error principle.”
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[21] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the
process by which the sentence is reached.13
9 Criminal Procedure Act 2011, s 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
11 At [33], [35].
12 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
13 Ripia v R [2011] NZCA 101 at [15].
Appellant’s submissions
[22] Mr Herbke, for Mr Bennett, submits that the starting point of 18 months’ imprisonment for the obtaining by deception offences was too high. He submits that a starting point of 12 months’ imprisonment would have been appropriate.
[23] In support of this submission he refers to the Court of Appeal decision in Turner v R14 where a starting point of 18 months’ imprisonment was considered “fully justified” in a case involving 19 successful uses of a credit card as well as six unsuccessful attempts. As a consequence $5,000 was obtained. The victim was a vulnerable elderly man who was targeted because of his age, infirmity and vulnerability.
[24] Mr Herbke submits that the facts in Turner are substantially more aggravating than the present where Mr Bennett faced sentence on only six charges of obtaining by deception of which two resulted in no loss. He obtained a total of $3,091.
[25] He also points to the fact that the victims in the present case are not as vulnerable as in Turner. He accepts that the 16-year old student was vulnerable by reason of her age and the financial loss to her was significant. He also accepted that there was some level of breach of trust involved in the ASB cheque offending because the owner of the cheque book had been a friend of Mr Bennett’s.
[26] Mr Herbke also refers to R v Singh15 where the Court of Appeal considered
18 months’ imprisonment to be the appropriate starting point in a case where the offender obtained various credit cards in the names of others and then used those cards to purchase items to a total value of $3,000. He submits that the offending in Singh was more sophisticated.
[27] Mr Herbke referred me to other cases16 where starting points of between 12 and 18 months have been imposed for offending which Mr Herbke submits was
14 Turner v R [2014] NZCA 454.
15 R v Singh (2003) 20 CRNZ 158 (CA).
16 Keenan v Police HC Christchurch CRI-2007-409-97, 5 June 2007; Baker v Police [2012] NZHC
2355 and Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011.
more serious. He submits that a starting point of 12 months’ imprisonment is
justified on an analysis of these authorities.
[28] Mr Herbke submits that Mr Bennett was entitled to the full 25 per cent discount available for an early plea.17 He submits that a close analysis of the procedural background demonstrates that guilty pleas were, in fact, entered at the earliest opportunity on the majority of charges. Mr Herbke also submits that the Judge failed to give credit to Mr Bennett for his remorse and rehabilitative efforts. He submits that the appropriate discount should have been of the order of five per
cent which would equate to a two month reduction.
[29] Finally, Mr Herbke submits that the appropriate end sentence would equate to approximately 18 months’ imprisonment. Unsurprisingly, he does not criticise the four month cumulative term imposed on the re-sentencing to reflect the first tranche offending but makes the submission that even when this is included the final sentence is less than two years’ imprisonment thus permitting the Court to exercise its discretion to commute the sentence to one of home detention, noting that the PAC report recommended such a course.
Respondent’s submissions
[30] Mr Hughes, for the Police, submits that while the starting point adopted by the Judge was near the top of the available range for the offences of obtaining by deception it was, nonetheless, within the Judge’s sentencing discretion. Mr Hughes referred to R v Baker18 where Collins J concluded that a starting point of 18 months’ imprisonment was within the range and reasonably available to the Judge having regard to the period over which the offending took place, the breach of trust, the premeditation and the quantum of loss. Baker involved a similar quantum to the
present. The offending against various people was on a similar scale and of a similar nature to the present. The cheque offending was premeditated and required a degree of sophistication. Mr Hughes referred to other authorities which support a similar
starting point range.19
17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
18 R v Baker [2012] NZHC 2355.
19 Tiopira v Police [2012] NZHC 1720.
[31] Mr Hughes submits that while it was open to his Honour to consider Mr Bennett’s remorse as a mitigating factor it was also open to his Honour to critically evaluate the extent to which the remorse was genuine and whether Mr Bennett had any insight into his offending and if so to what extent.
[32] In response to the submission that the Judge should have taken into account the rehabilitative efforts by Mr Bennett, Mr Hughes submits that while it was open to the Judge to reject a discount for this factor and given that Mr Bennett’s efforts prior to sentence were minimal and belated, this was a proper approach. He pointed to the fact Mr Bennett only started the residential 26 week programme three weeks before sentencing.
[33] Mr Hughes points to the Judge’s six month uplift to account for Mr Bennett’s previous criminal history, offending on bail and offending while subject to a sentence, describing this as modest, particularly having regard to the fact that Mr Bennett had been sentenced on an almost identical set of charges in the first tranche on 14 November 2014.
[34] Mr Hughes also submits that the four month cumulative uplift for the re- sentencing on the first tranche of charges was also modest.
[35] On the question of the discount for guilty pleas Mr Hughes very properly acknowledged in the course of oral argument that on a close examination of the procedural history the pleas could properly be described as having been entered at the earliest opportunity and accepts Mr Bennett is entitled to a full 25 per cent discount. These details were not canvassed before the sentencing Judge.
[36] Mr Hughes submits that the Judge was correct when he described Mr Bennett’s compliance with Court-ordered sentences as “appalling”. He submits that even if the end sentence was to fall below two years’ imprisonment it would have been entirely open for his Honour to consider that home detention was not appropriate given Mr Bennett’s past conduct.
Analysis
[37] This appeal requires the answer to two questions: (a) Was the starting point appropriate?
(b) Should a greater discount have been given?
[38] I shall deal with these questions in the context of the specific issues raised in relation to each by Mr Bennett.
(a) Was the starting point appropriate?
[39] The Judge identified the charges of obtaining by deception as the lead offences. It has not been suggested that this method was wrong and I am satisfied that the Judge was correct in adopting this approach.
[40] The question is then whether an 18 month starting point for those six offences was appropriate. Counsel were agreed that the cases relevant to this assessment are Turner,20 Singh,21 Baker,22 Keenan23 and Walsh24. However, they do not agree on what is the correct application of the principles in those cases to the present.
[41] The facts of Turner and Singh have already been discussed.
[42] In Keenan the offender entered the house of a former partner and stole cash and two credit cards. The two cards were used on multiple occasions with a total sum of over $4,700 being dishonestly obtained. Fogarty J considered the appropriate starting point for this offending was 12 months’ imprisonment. However, that starting point needs to be viewed in the context that the starting point was added cumulatively to a starting point of 18 months for burglary. The starting point on the obtaining by deception charges may well have been a modest one reduced to take
into account the totality principle.
20 Turner v R, above n 14.
21 R v Singh, above n 15
22 R v Baker, above n 18.
23 Keenan v Police above n 16.
24 Walsh v Police above n 16.
[43] In Baker Collins J considered 18 months’ imprisonment was an appropriate starting point. There the quantum of loss was similar to the present. The offending was committed against various people on a similar scale and of a similar nature to the present. In the present case there is evidence of premeditation, particularly in relation to the cheque offending which first required stealing the cheque and then using it to obtain money from the bank.
[44] I also note the comments of Lang J in Tiopira where his Honour noted that a starting point of 12 to 18 months’ imprisonment will be appropriate where obtaining by deception-type offending results in losses of around $2,000 to $3,000.25
[45] In my view the circumstances of the present case are most closely analogous to those in Singh and Baker. The offending was prolonged. It was directed to a number of victims and the total amount dishonestly obtained was in excess of
$3,000. While the teenage victim was less vulnerable than the elderly man in Turner, I am satisfied that the present offending justifies a starting point in the order of 18 months’ imprisonment. While 18 months would rightly be considered to be at the top of the range available it is not one which is outside the range of the Judge’s sentencing discretion.
(b) Should a greater discount have been given?
[46] Mr Herbke submits Mr Bennett is entitled to a discount of at least five per cent (or two months) in recognition of his remorse and rehabilitation.
[47] I agree with Mr Hughes that neither of these factors, either individually or taken together, justifies any discount.
[48] While a discrete and separate discount may be given for remorse in some circumstances, the comment of the Supreme Court in Hessell v R that this requires a “proper and robust”26 analysis in each case is pertinent. I am not satisfied that Mr Bennett’s remorse in this case goes beyond that which is implicit in any plea of
guilty.
25 Tiopira v Police above n 19.
26 Hessell v R above n 17 at [64].
[49] The PAC report records that Mr Bennett feels remorseful towards the victims of the offences. Furthermore, in a letter to the presiding Judge, Mr Bennett expressed his regret for what he had done, promising to address his “issues and addictions”. He expressed his apologies to the Police and the Ministry of Justice for wasting their time and asked to be given another chance to prove that he is capable of change. It is noteworthy that nowhere in the letter does Mr Bennett express any remorse towards the numerous victims of his crimes. His regret appears largely to be regret for the situation in which he now finds himself. In the circumstances, it is entirely understandable that his Honour did not give a separate discount for remorse.
[50] On the question of rehabilitation I come to a similar conclusion. I agree with
Mr Hughes that Mr Bennett’s efforts at rehabilitation are simply too few and too late.
[51] Similarly, I agree the six month uplift to reflect Mr Bennett’s extensive previous criminal history, offending on bail and offending while subject to a sentence was modest in all the circumstances.
[52] It cannot be escaped that just nine months after he was sentenced on the first tranche of offences he found himself before the Court being sentenced again for an even larger number of offences of a very similar type. Furthermore, they were committed while he was subject to the sentence imposed on the earlier charges. The four month uplift for that offending was modest on any analysis. It is unsurprising Mr Herbke took no issue with it. In my view a greater uplift might well have been justified.
[53] On the question of the guilty plea discount the Judge reduced the full available credit to take into account Mr Bennett’s breach of bail conditions. However, this had already been taken into account as one of the factors justifying the six month uplift. As such it amounts to double counting and the full available discount should have been given if the Court was satisfied the guilty pleas were entered at the earliest opportunity. On this question Mr Hughes properly conceded
that Mr Bennett was entitled to the full 25 per cent discount available under Hessell27
rather than the 15 per cent allowed by the Judge.
27 Hessell v R above n 17.
[54] When applying a 25 per discount to the 33 month sentence this leads to an end sentence of 25 months. When the re-sentenced offending is added (the further four months unchallenged on appeal), this leads to an end sentence of 29 months or two years and five months’ imprisonment.
[55] I am satisfied that a sentence of 29 months’ imprisonment is appropriate in that it is consonant with the principles of the Sentencing Act 2002 and consistent with the principle of totality. This was chronic, serious, serial offending committed with a complete disregard for the welfare of others and, at least in substantial part, committed while Mr Bennett was subject to a community-based sentence.
Home detention
[56] Given I am satisfied that the appropriate end sentence is more than two years’ imprisonment it is unnecessary to consider the question of the appropriateness of home detention.
[57] However, even if the end sentence required the Court to consider home detention I agree with the Judge’s general comments that such a sentence would not have been appropriate having regard not only to Mr Bennett’s lengthy criminal history but also his persistent failure to comply with the various sentences he had previously been subject to. Mr Bennett has breached the conditions of supervision, breached community work obligations, breached Court release conditions, failed to comply with prohibitions, failed to answer bail, failed to comply with release conditions and driven while disqualified. No sentence other than a full-time custodial term was appropriate in the circumstances.
Result
[58] The appeal against sentence is allowed.
[59] On the charges of obtaining by deception the concurrent sentences of 33 months’ imprisonment are quashed and concurrent sentences of 29 months are substituted.
[60] All other sentences imposed in the District Court remain.
Moore J
Solicitors:
Barterlaw, Auckland
Crown Solicitor, Auckland
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