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Bennett v R

Bennett v R

Case [2012] NZCA 173 8 May 2012

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Premeditation

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA548/2011
[2012] NZCA 173

BETWEEN JOHNNY KERRY BENNETT
Appellant

AND THE QUEEN
Respondent

Hearing: 27 February 2012

Court: Hammond, Priestley and Allan JJ

Counsel: J F Pereira for Appellant
D J Boldt for Respondent

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 21^st 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…

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 Bennett v R

Details

AGLC: Bennett v R [2012] NZCA 173
Case: [2012] NZCA 173
Decision Date: 8 May 2012

CaseChat Overview and Summary

Bennett appealed against his sentence, contending that the sentencing Judge erred in finding that he was not acting in self-defence and that the offending was premeditated. He further argued that the sentence was manifestly excessive and that home detention should have been imposed instead. The central issue was whether the trial Judge erred in his factual findings and, if not, whether the sentence imposed was manifestly excessive.

The Court of Appeal found that the trial Judge was entitled to make factual findings that were not inconsistent with the jury’s verdict, and that his findings were consistent with the evidence presented at trial. The Court rejected the argument that the Judge was not entitled to find premeditation, as the evidence supported this conclusion. The Court further held that the starting point of two years imprisonment was within the available range, and the uplift to account for the severity of the offending was appropriate. While the Court noted that the Judge did not strictly follow the step-by-step approach mandated by previous case law, it found that the ultimate sentence was not manifestly excessive.

The Court dismissed the appeal against sentence, holding that the trial Judge’s findings were correct and that the sentence imposed was within the appropriate range.

Final orders:
The appeal against sentence is dismissed.

Orders