Bennett v The Queen - [2019] NZHC 728

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-019

[2019] NZHC 728

BETWEEN
CAMPBELL CHRISTOPHER BENNETT

Appellant

AND

THE QUEEN

Respondent

Hearing: 1 April 2019

Counsel:

R M Mansfield for Appellant H G Clark for Respondent

Judgment:

8 April 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 8 April 2019 at 4:00 pm

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

BENNETT v R [2019] NZHC 728 [8 April 2019]

Introduction

[1] On 18 January 2019, Mr Bennett was sentenced by Judge Paul to five months’ home detention on a charge of indecent assault on a girl aged between 12 and 16 years.1 He was also ordered to pay reparation of $15,000 and has done so.

[2] Mr Bennett contends he should have been discharged without conviction, but in any event the sentence of home detention is manifestly excessive. He appeals his conviction and sentence on that basis.

[3] An appeal against a refusal to discharge a person without conviction is characterised as an appeal against both conviction and sentence.2 Therefore, I have to examine Mr Bennett’s case to decide whether a miscarriage of justice has occurred by virtue of a material error by Judge Paul in entering the conviction.3 If not, then I must look to see whether there has been a material error in setting the sentence such that a different sentence should be imposed.4

Background

[4] Mr Bennett pleaded guilty to the charge of indecent assault. The offending occurred some 33 years previously. The complainant was aged 14 years at the time and was Mr Bennett’s step-niece. He was aged approximately 32 years at the time. He is now in his mid-60s.

[5] On 13 August 1986, the complainant was at her home in Auckland during celebrations held to mark her father’s 40th birthday. Mr Bennett was present. The complainant went to bed in her room and went to sleep. Her sister was sleeping in a nearby bed in the same room. During the night, the complainant woke to find Mr Bennett with his hand down her pants, rubbing her genitals. The complainant was petrified and pretended to be asleep until eventually Mr Bennett stopped and left the room.

1      Crimes Act 1961, s 134(2)(a), as it was at the time of the offending.
2      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7].
3      Criminal Procedure Act 2011, s 232.
4      Section 250.

[6] Shortly after the offending Mr Bennett went to live in Australia. In 1990 the complainant’s father, having found out about the indecent assault, raised it with Mr Bennett. He admitted the offending and asked for forgiveness.

[7] In 1997 Mr Bennett returned to New Zealand to attend a family function. The complainant was present and asked Mr Bennett why he had offended…

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 [2019] NZHC 728
Case: [2019] NZHC 728
Decision Date: 8 April 2019

CaseChat Overview and Summary

In Bennett v The Queen, the appellant, Campbell Bennett, was convicted of indecent assault on a girl aged between 12 and 16 years and sentenced to five months' home detention. Bennett appealed both his conviction and sentence, contending that he should have been discharged without conviction and that the home detention sentence was manifestly excessive. The High Court of New Zealand examined the appeal on two primary issues: whether the Judge's refusal to discharge Bennett without conviction constituted a miscarriage of justice, and whether the sentence was manifestly excessive.

The court began by assessing the gravity of the offence, noting the significant aggravating factors such as the age disparity, breach of trust, and the serious nature of the indecent assault. The court found that the mitigating factors did not sufficiently reduce the gravity of the offence to classify it as moderate. In evaluating the consequences of a conviction, the court concluded that the potential personal consequences for Bennett of being unable to live in Australia did not render the consequences out of all proportion to the gravity of the offence. The court held that it was appropriate for the Australian authorities to exercise their discretion in considering all mitigating factors.

Regarding the sentence, the court rejected the argument that a further discount should be applied for the risk of being unable to return to Australia, as it could not credit the risk of a discretionary decision against the offender. The court also dismissed the argument that the home detention sentence was manifestly excessive, finding that it was within the appropriate range for similar offences. The appeals against both the conviction and the sentence were dismissed.

In conclusion, the High Court upheld the conviction and sentence imposed by Judge Paul, affirming that the sentence of five months' home detention was appropriate and that the refusal to discharge Bennett without conviction was justified.

Orders