Bennett v The Queen - [2012] NZCA 44

IN THE COURT OF APPEAL OF NEW ZEALAND

CA682/2011
[2012] NZCA 44

BETWEEN TYSON BENNETT
Appellant

AND THE QUEEN
Respondent

Hearing: 21 February 2012

Court: Randerson, Potter and Simon France JJ

Counsel: E R Fairbrother and G M Fairbrother for Appellant
K A L Bicknell for Respondent

Judgment: 28 February 2012 at 11.30 a.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellant pleaded guilty at the outset of his trial in the District Court to one count of causing grievous bodily harm to a 22 year old man. He was sentenced by Judge Rea to four years and three months imprisonment.[1]
[1] R v Bennett DC Napier CRI-2011-41-326, 10 October 2011.
Mr Bennett now appeals against his sentence on the ground that the Judge erred in law in failing to consider and impose a rehabilitative sentence of intensive supervision rather than a term of imprisonment.

The facts

The facts as described by the Judge in his sentencing notes are accepted. On 29 January 2010, the appellant had been drinking with others associated with the Mongrel Mob. During the afternoon, the appellant and several other offenders encountered the victim in an alleyway behind a camping ground. Without any provocation on his part, the victim was grabbed and thrust against a fence. He was “king hit” by one of the group and knocked to the ground. Mr Fairbrother accepted that the appellant was responsible for delivering this blow.
After the victim had fallen to the ground, the victim was subjected to a number of blows, kicks and stomps, some of them directed at his head. He also received a number of kicks to the stomach region and he suffered severe bruising to his liver.
While the Judge accepted there was dispute as to the precise role played by the appellant, he did not consider it appropriate to apportion individual blame. Rather, he saw the assault as a single gang attack made by four persons on a totally defenceless person who was left battered, unconscious and bleeding in the alleyway. The Judge also noted that members of the group were shouting Mongrel Mob slogans and saluting one another at the time of the attack.
It was about an hour before the victim was found by a member of the public and was taken to hospital. He received head injuries in addition to the bruising to his liver. Upon admission, his condition was listed as “critical but stable” and he was placed in an induced coma. The Judge remarked it was a miracle the victim survived and that it was probable the medical attention provided at the hospital saved the appellant from a charge of murder or manslaughter.
When spoken to by the police, the appellant initially denied he was present but later acknowledged responsibility by his guilty plea.

The Judge’s approach to sentencing

The Judge adopted a starting point of five years imprisonment, there being no dispute that the…

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 The Queen

Details

AGLC: Bennett v The Queen [2012] NZCA 44
Case: [2012] NZCA 44
Decision Date: 28 February 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Tyson Bennett, the appellant, appealed against the sentence imposed by Judge Rea in the District Court, which was four years and three months imprisonment for causing grievous bodily harm to a 22-year-old man. The court, comprising Randerson, Potter, and Simon France JJ, heard the appeal on 21 February 2012 and delivered its judgment on 28 February 2012. Bennett's counsel argued that the Judge erred in law by not considering and imposing a rehabilitative sentence of intensive supervision instead of a term of imprisonment.

The court was required to determine whether the Judge had erred in failing to consider and impose a rehabilitative sentence of intensive supervision, as argued by Bennett's counsel. The court considered the arguments presented by both parties and evaluated the facts and circumstances of the case. The court accepted that Bennett had a troubled history, which included physical and sexual abuse, substance abuse, and anger management difficulties. However, the court also noted that Bennett presented an ongoing risk to both himself and the public.

The court found that the Judge had not erred in imposing a sentence of imprisonment, as the seriousness of the offending and the risk Bennett presented to the public warranted a custodial sentence. The court also noted that Bennett had a history of violent behaviour and had not responded to numerous interventions over a substantial number of years. The court dismissed Bennett's appeal against sentence.

The court expected the prison authorities and the Parole Board to take appropriate steps to assist Bennett while he was in prison and upon his release. The appeal against sentence was dismissed, and the original sentence of four years and three months imprisonment was upheld.

Orders