Bennett v R
[2012] NZCA 173
•8 May 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA548/2011 [2012] NZCA 173 |
| BETWEEN JOHNNY KERRY BENNETT |
| AND THE QUEEN |
| Hearing: 27 February 2012 |
| Court: Hammond, Priestley and Allan JJ |
| Counsel: J F Pereira for Appellant |
| Judgment: 8 May 2012 at 11.30 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Allan J)
Introduction
The appellant was convicted at trial on two counts of injuring with intent to injure and one of assault with intent to injure. He was sentenced by Judge Hubble on 19 August 2011 to two years three months imprisonment.[1] He now appeals against sentence.
[1] R v Beeston DC Auckland CRI-2009-044-5379. 18 August 2011.
It is contended by Mr Pereira on the appellant’s behalf that the factual basis on which he was sentenced was erroneous, that the Judge’s starting point was accordingly too high, and that the final sentence was manifestly excessive. Mr Pereira argues that a sentence of home detention ought to have been imposed.
Factual background
On 25 April 2009, the appellant had been at a 21st birthday party held in a hall at Orewa. At 12.45 am the party was breaking up. One of the victims, Mr Leif Blair, was walking to his car with his wife. A group of party goers, including the appellant and his father, was standing around Mr Blair’s vehicle. One of the group urinated on Mr Blair’s vehicle. A verbal altercation followed. The appellant’s father, a co-offender, made provocative comments.
At trial, the Crown case was that the appellant had punched Mr Blair in the head, and that this blow acted as a catalyst for the appellant’s four associates (including his father) to join in. The appellant had contended at trial that it was Mr Blair who threw the first punch and the appellant was acting in self-defence.
At sentencing Judge Hubble (who was the trial Judge) accepted that, after being pursued and possibly dragged from his car, Mr Blair may have thrown a punch, but that it did not land. The Judge found that the appellant was the first of his group to become involved by throwing a serious punch. During the course of the ensuing fracas, Mr Blair was knocked to the ground where he was repeatedly kicked in the head and stomach by the appellant and his father. He suffered a broken eye socket, together with severe bruising to his body and face.
The second victim, Mrs Cherie Galbraith, attempted to intervene by pulling the appellant away from Mr Blair, but she was elbowed in the face by the appellant and then punched to the ground. She too suffered bruising to her face and body and her clothing was torn.
The third victim, Mr Mark Galbraith, intervened to protect his wife. Like the others he was punched, and when he fell to the ground, was repeatedly kicked. One of the offenders stamped on Mr Galbraith’s face with such force that a clear imprint of the sole of his shoe was left on his severely swollen cheek. He also sustained broken ribs.
The factual challenge
Mr Pereira’s careful and lengthy submissions include a claim that the lead count (injuring Mr Blair with intent), should have been split at trial into two separate counts, the first relating to the initial punch which knocked Mr Blair to the ground, and the second covering the punching and kicking as he lay helpless on the ground. The claim is based upon the contention that the appellant may well have had a defence of self-defence open to him in respect of the initial punch, whereas it is acknowledged that no such defence would be available once Mr Blair had been knocked to the ground.
We are unable to entertain this aspect of Mr Pereira’s argument. There was no challenge to the form of the indictment at trial, nor is there any appeal against conviction. Moreover, the submission appears to involve a misconception of the role of the sentencing Judge in determining the factual basis upon which the sentencing process is to be undertaken.
Judge Hubble opened his sentencing remarks on 18 August 2011 with a discussion of the offending itself, during the course of which he made a number of findings. It is convenient to set out this aspect of the Judge’s remarks in full:
[1] It is my duty, of course, to apply the law to the circumstances of this case in respect of each one of you as individuals. The incident occurred after a party; I believe it was a 21st party or something of that nature, at Orewa, in the hall on the beach there and all of you were attending. You were supposed to be friends of the hosts of the party. You all knew Mr Galbraith, for instance, and it struck me, when I saw both Mr Galbraith and his wife give evidence, that they were mature, non-aggressive people. They were a family couple and they had been attending a family function.
[2] Mr Leaf [Leif] Blair was a well-constructed male, but he struck me as not being easily inflamed and was also a mature person and took a reasonably mature attitude to what occurred after the party; and there was some evidence that one or more of the Bennetts was acting aggressively at the party itself. But in any event, they left before the victims in this case and when the victims came out of the dance hall, or the hall, to go home, the three of them, Mr Leif Blair was driving, I understand, and the Galbraiths were travelling with him, walked towards his station wagon car and I think it was Johnny Bennett, or one of the Bennetts, who was urinating on the wheel of the car. They were all gathering around, the Bennetts were all gathering around, whilst he was doing that. There were a number of people there. At one stage there Mr Bennett Snr announced that nobody could beat his son on the Coast, that he was King of the Coast.
[3] The impression I got at the hearing was that the Bennetts, and possibly some of their hangers-on, including Mr Beeston, were looking for a fight and everything that occurred seems to support that view. Why do they all need to stand around Mr Leif Blair’s vehicle when they had their own nearby? One of them urinated on the wheel whilst all the others are standing around. In any event Mr Leif Blair took exception to this and asked them what the hell they thought they were doing? Would they mind not piddling on his car? He probably put that in fairly firm language. As Mr Johnny Bennett has said now, they should have all just retired at that stage, apologised and got on with business. But they did not, and as Mr Leif Blair went to go round and get into his car I believe he was hassled and abused and challenged by the Bennetts and others who were present. I agree there were others who were involved, but there is no doubt in my mind that the leaders here were Mr Bennett Snr and his son Johnny.
[4] It may be that when Mrs Galbraith tried to intervene and get Mr Leif Blair into the car and out of the way that he endeavoured to resist this because he was being followed, pursued, and, I believe, abused by the others as he was trying to go round and get into the driver’s door. He got back out of the vehicle. Some of the evidence pointed to the fact that he was dragged out. Other parts of the evidence indicated that he stepped out to defend himself and may have thrown a punch. Whatever, the evidence indicated that punch did not land on anybody.
[5] It is what happened then that is the seriousness of this offending, and that is, that in my judgment Johnny Bennett intervened first and threw quite a serious punch. It may have been that punch which fractured Leif Blair’s eye socket. It may also have been that that injury occurred at a later stage. That does not matter, in my mind, because what then happened is that all of them, the Bennetts and others gathering around, attacked Mr Leif Blair and assaulted him quite viciously. He immediately went to ground and he was punched and kicked by both of the Bennetts whilst he was on the ground.
[6] Mrs Galbraith attempted to intervene. She was elbowed in the eye, judging by the jury’s verdict on the question line, that was an intentional elbowing. She suffered bruising from that. She too was then punched whilst she was on the ground and her husband then attempted to intervene to stop this happening and he too was set upon. I accept that both of the Bennetts had some part in that also. At that late stage Mr Beeston got himself involved and I accept that the extent of the evidence does not establish that he threw any punches or kicks. What it does establish is that he put a head-hold, or stranglehold, on Mr Galbraith and dragged him across the fence and bent him awkwardly across this fencing rail and held him in that headlock.
[7] Mr Galbraith had a nasty kick imprint of the bottom of a boot on the side of his face. I do not believe Mr Beeston did that. I believe one of the others did. But there is no evidence as to who necessarily did that. So Mr Beeston’s part in this matter was a positive, but not an aggressive role, and he held Mr Galbraith whilst he was being assaulted by others.
[8] So that is my reading of what occurred on this occasion and so it will be clear from that that I do not accept that this was necessarily a spontaneous and unplanned act of aggression. It has the appearance, to me, that it was something of a setup that the Bennetts wanted to get involved in a fight. As for provocation I do not find that there was any provocation on the part of Leif Blair. The provocation was in these people or this person urinating on Mr Leif Blair’s car.
[9] I do not believe that Mr Leif Blair would have got involved in any physical activity if he had been allowed to get into his car without being hassled. But the seriousness of the offending really relates to the blows to the head and punches and kicks whilst not just Mr Leif Blair, a substantial male, was on the ground, but also against Mrs Galbraith who was, as I say, a peaceful, family, mature person.
Mr Pereira submits that the jury may well have been of the view that the punch which knocked Mr Blair to the ground was an act of self-defence. That being so, he says that it was not open to Judge Hubble to sentence the appellant on the basis that he was fully culpable for the violence. Neither was it open to the Judge, he argues, to find that the offending was premeditated. Accordingly, Mr Pereira invites this Court to hold that Judge Hubble was not entitled to conclude, as he did, that “the impression I got at the hearing was that the Bennetts, and possibly some of their hangers-on, including Mr Beeston, were looking for a fight and everything that occurred seems to support that view”.[2]
[2] At [3].
As we have said, Mr Pereira’s argument appears to us to involve a misconception of the respective roles of the sentencing Judge on the one hand and this Court on appeal the other. It was for Judge Hubble (as trial Judge) to decide what facts, consistent with the jury’s verdict, he accepted for sentencing purposes. As was pointed out by this Court in R v Freakley:[3]
[11] In sentencing, the Judge was, under s 24 of the Sentencing Act 2002, able to accept as proved any fact that was disclosed by evidence at the trial. That is an assessment which the trial Judge is best placed to make. This Court will not ordinarily scrutinise the factual basis on which the sentencing has proceeded where that factual basis is found by the trial Judge on the basis of the evidence at trial.
[3] R v Freakley [2010] NZCA 497.
The Judge’s findings on the point are not inconsistent with the jury’s verdict. It is not for this Court to depart from them.
The Judge found that the appellant was not acting in self-defence when he punched Mr Blair in the face, and that he was also involved in punching and kicking Mr Blair as he lay on the ground. Those factual findings were open to the Judge; so were his findings in respect of the assaults on Mr and Mrs Galbraith.
We deal with the appeal on the basis of the jury’s verdict and the facts as found by the trial Judge.
The starting point
Judge Hubble adopted a starting point of two years imprisonment for both the appellant and his father. Mr Pereira submits that the appellant’s culpability should have been reflected in a lower starting point because, had the appellant acted initially in self-defence, his conduct could properly be characterised as excessive self-defence rather than wholly unprovoked violence.
In our view, this argument is unavailable to the appellant, having regard to the Judge’s factual findings. Contrary to Mr Pereira’s submissions, Judge Hubble was well entitled to reject the appellant’s claim to have acted in self-defence at the outset. Beyond that, we are satisfied, as Mr Boldt submits, that the starting point was well within the available range identified by this Court in R v Harris.[4] The Judge referred to Harris, and by way of comparison with the instant case, noted R v Eveleigh,[5] Neho v R,[6] and R v Ross.[7] This was a cowardly and vicious assault that could well have attracted a higher starting point. The accused were jointly charged and the appellant, identified by the Judge as the principal perpetrator, must bear his share of responsibility for what occurred.
[4] R v Harris [2008] NZCA 528.
[5] R v Eveleigh HC Auckland CRI-2009-044-6390, CRI-2009-044-1023 and CRI-2009-044-6826, 23 April 2010.
[6] Neho v R [2010] NZCA 8.
[7] R v Ross [2010] NZCA 306.
Likewise, we reject Mr Pereira’s contention that Judge Hubble ought not to have identified premeditation as an aggravating factor. Again, this argument is premised upon the flawed assumption that the Judge was unable to make a finding of fact that could possibly conflict with the verdict of the jury. As we have observed, Judge Hubble was free to make any finding of fact that was not inconsistent with the jury’s verdict. His conclusion as to premeditation was not inconsistent with that verdict. It is not for this Court on appeal to depart from the findings of the Judge who had the immense advantage of presiding at trial.
Beyond the starting point
Having identified a starting point of two years imprisonment for both the appellant and his father, the Judge dealt with each of the three prisoners (including Mr Beeston and Mr Bennett Snr, in turn). With respect to the appellant he said:
[21] Johnny, on the other hand, you also have some convictions in the past but they are not relevant to anything that has occurred here. I cannot see that there is any basis for differentiating in the sentence between Johnny Bennett and his father. On the one hand Johnny Bennett, in his favour, has a lot of potential. He has attended a lot of courses. He is obviously a man who has turned his life around to some extent. The references he has filed indicate that he has a lot of promise. It is a pity he has got involved in violence at this level.
[22] On the other hand I think he was the principal perpetrator here. He was the one who threw the serious punches.
[23] On the part of Mr Bennett Snr nothing much in your favour can be said except that you do have health problems and I need to take those into account in imposing an appropriate sentence. In my judgement the cases indicate that I must accept in law a minimum start point for both of you for this offending of two years’ imprisonment. In all likelihood the Crown submission of two and a half years with an uplift for the additional offending against the other two victims would warrant an uplift of up to nine months. But, bearing in mind the matters I have mentioned in Johnny’s case, the turnaround he has made, his age, etc, but on the other hand he was the main perpetrator and in Mr Bennett Snr’s case your health situation, in my judgement an uplift of just three months is warranted.
It will be seen that the Judge has, in effect, bundled up his consideration of aggravating and mitigating factors, and determined that there should be an overall uplift of three months imprisonment. In doing so, the Judge did not follow the step by step approach mandated by this Court in R v Taueki, which involves separate consideration of aggravating and mitigating factors in respect of both the offending and the accused.[8] In the absence of a conventional Taueki analysis, we are obliged to conduct our own, albeit briefly.
[8] R v Taueki [2005] 3 NZLR 372.
The starting point of two years imprisonment was adopted in respect of the offending against Mr Blair. The Judge imposed an uplift of nine months in order to recognise the gravity of the offending against Mr and Mrs Galbraith. That increased the notional sentence to two years nine months imprisonment. Although the uplift might perhaps have been towards the top of the available range for that separate offending, we consider the chosen starting point for the offending against Mr Blair to be, if anything, generous. We accept Mr Boldt’s submission that a higher starting point might well have been sustainable, and agree that this was a very bad assault which could have led to even more serious injuries than actually resulted.
In reducing the uplift to three months, the Judge must be taken to have allowed six months for mitigating factors. Mr Pereira says that was insufficient. He submits that the discount ought to have been nine months, and that the Judge failed to take into account certain persuasive mitigating factors. The first argument in support of that contention relies again on the proposition that the Judge was not entitled to take a view of the facts adverse to the appellant. We have already rejected that argument and need say no more about it.
Next, Mr Pereira refers to the appellant’s youth. He was 20 years old at the time of the offending. While we accept that an offender aged 20 may be able to argue that his youth is a mitigating factor, it is less persuasive than would be the case had he been significantly younger. In other words, a discount for an offender aged say 16 years, will generally be higher than for an equivalent offender aged 20 years. In any event, the Judge specifically referred to the appellant’s age, and we must assume that it was taken into account in allowing the six months discount.
Mr Pereira refers also to the appellant’s growing maturity, of which there was considerable supporting evidence in the form of personal references. But again that was specifically acknowledged by Judge Hubble who took into account the appellant’s potential, his educational achievements to date, and the steps he had already taken to turn his life around. Counsel makes reference to the appellant’s remorse, and suggests that the pre-sentence report demonstrates a degree of insight into the offending. He notes that the probation officer was extremely impressed by the appellant. We accept that the appellant’s remorse is genuine, but it would be unusual to make any specific allowance for it in a case where, as here, it is unaccompanied by a guilty plea. We do not regard this case as calling for a separate discount for remorse.
Finally, our attention is drawn to the fact that the appellant spent six months on bail, subject to a 24 hour curfew, which he carefully observed. It is suggested that a discrete deduction of one month should have been allowed on that account alone.[9] We accept that in principle it will often be appropriate to reflect a significant period spent on 24 hour curfew, but we do not agree that we ought to interfere with a sentence on that ground alone. We take that view because we are satisfied that all of these mitigating factors, considered together, were adequately reflected in the six month discount allowed by the Judge.
[9] Schuster v R [2011] NZCA 343.
Mr Pereira draws our attention to the decision of this Court in Ganley v R, but that was a very different case.[10] There, the 19 year old appellant pleaded guilty to a representative count of supplying methamphetamine. The appellant argued that the nine month discount for mitigating factors including his guilty plea, remorse, youth, strong rehabilitative prospects and absence of previous convictions, was insufficient. He had been under the influence of an older step-brother at the time of the offending, and had since turned his life around, attending counselling and finding a job. The Court considered that the mitigating features warranted a discount of nine months (25 per cent) with a further 15 per cent discount in recognition of the guilty plea. While this case has common features with Ganley, there are significant differences. Here, Mr Bennett did not plead guilty; neither was he a first offender. Moreover, the Judge found that, although the appellant was under the influence of his father, he was nevertheless the principal perpetrator who threw the most serious punches.
[10] Ganley v R [2011] NZCA 449.
It is generally unhelpful to compare the index case with the facts of one comparator. Reference to other cases is usually made in order to ascertain trends and sentence ranges.
Mr Pereira seeks an increase in the discount for mitigating factors from six to nine months. We are satisfied that, although the Judge dealt with mitigating matters somewhat shortly, nevertheless he recognised them adequately in the ultimate outcome. He might have allowed a slightly higher discount for mitigating factors, but we consider the starting point to have been on the lenient side. The sentence of two years three months imprisonment imposed upon the appellant was comfortably within the available range and cannot be said to have been manifestly excessive.
Result
The appeal against sentence fails and is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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