Bennett v The Queen
[2019] NZHC 728
•8 April 2019
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 against her. His reply was, “because you are beautiful”.
[8] The complainant spoke at Mr Bennett’s sentencing and made it clear his offending had adversely affected her life ever since.
[9] Mr Bennett applied to Judge Paul for a discharge without conviction on the basis that a conviction for this offending would put his ability to live in Australia at grave risk. Mr Bennett has lived in Australia since shortly after the offending and has made his life there. His partner lives in Australia, his business interests are in Australia, and he is in his mid-60s with health problems which are addressed with the assistance of private health insurance which would not cover him in New Zealand. He has not committed further offences.
Approach on appeal
[10] The law recognises that sometimes the effect of a conviction for offending on an offender can be so harsh that the interests of justice are better served by a conviction not being entered at all. The test is set out in s 107 of the Sentencing Act 2002:
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[11] It can be seen there is a high threshold between an offender and a discharge without conviction. It is not enough to satisfy the Judge that the consequences of a conviction would be disproportionate to the gravity of the offence. The Judge must be satisfied the consequences would be out of all proportion to the gravity of the offence.
[12] To apply the test properly, a Judge must (as did Judge Paul) conduct a three- step analysis:5
(a)Assess the gravity of the offending. That means first looking at all the relevant circumstances of the offending and of the offender, and then standing back and deciding how serious the offending is.
(b)Determine the direct and indirect consequences of a conviction for the offender.
(c)Determine whether those consequences are out of all proportion to the gravity of the offending.
[13] I will examine Judge Paul’s reasoning against the circumstances before him and, in doing so, I will make my own assessment as to whether there is an error and, if so, whether there should be a different result.
Did the Judge make an error such that Mr Bennett should be discharged without conviction?
The gravity of the offending
[14]Judge Paul assessed the aggravating factors of the offending as being:
(a)age disparity;
(b)breach of trust;
(c)the vulnerability of the complainant;
(d)the serious nature of the indecent assault, being skin on skin touching of the complainant’s genitals for more than a fleeting period; and
(e)the serious impact of the offending on the complainant.
5 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]–[9].
[15] Judge Paul acknowledged the offer of $15,000, a significant amount of reparation, as mitigating. This has been paid. The Judge also acknowledged that Mr Bennett admitted the offending when confronted four years later – but this was counterbalanced by his initial plea of not guilty, which was only replaced by a plea of guilty on the day of the trial. The Judge also noted Mr Bennett had taken steps to address the offending by seeking psychiatric treatment from 2013–2016.
[16] Taking these factors into account, the Judge did not accept the offending could be described as moderate. In the Judge’s view this was serious offending.
[17] I agree with Judge Paul. This was a serious indecent assault aggravated by the age disparity, the vulnerability of the victim (asleep in her own bed), the breach of trust inherent in the family relationship, and the effect on the victim. The mitigating factors identified by Judge Paul do not reduce the gravity of the offending sufficiently for it to be regarded as less than serious.
Consequences of a conviction
[18] Mr Bennett’s basis for seeking discharge without conviction is that a conviction threatens his desire to continue living his life in Australia.
[19] Australia’s Migration Act 1958 (Cth) (the Migration Act) provides that any non-citizen may be refused a visa or have their visa cancelled by the relevant Minister if the Minister reasonably suspects the person does not pass the Migration Act’s character test, and is satisfied that the refusal or cancellation is in the national interest.6 The character test is laid out in s 501(6). Mr Bennett’s re-entry to Australia is threatened in particular by subs (e), which provides that a person does not pass the character test if:
… a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child; or
(ii)found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction.
6 Sections 501(1) and (2).
[20] A discharge without conviction would therefore not allow Mr Bennett to pass the character test for the purpose of applying for or retaining a visa.
[21] A non-citizen visa holder or applicant failing the character test results in an exercise of discretion as to whether to refuse or cancel a visa, subject to Ministerial directions issued pursuant to s 499 of the Migration Act. Those directions set out a range of considerations to be factored into the decision whether to refuse or cancel a visa.
[22] The plea of guilty is sufficient to engage the discretion. The Australian authorities’ analysis of these considerations might be influenced by this Court’s decision as to whether to discharge Mr Bennett without conviction, but any discharge would not be determinative.
Consequences out of all proportion to gravity?
[23] Judge Paul took the view that Mr Bennett was already liable to removal from Australia. A lack of conviction would simply improve his position. He decided the potential for Mr Bennett to lose his ability to live in Australia, and its attendant personal consequences, are the conventional consequences for anyone facing a charge of this kind. He did not find the consequences to be out of all proportion to the gravity of the offending.
[24] The gravamen of the appeal is the weight that should be put on Mr Bennett’s approximately 30 years of living in Australia without offending. Is the risk that a conviction might result in him being unable to continue living that life a consequence out of all proportion to the gravity of his offending? In my view, Judge Paul was correct in his analysis. The passing of time does not lessen the severity of Mr Bennett’s offending. It was a serious example of offending of a serious kind, involving a vulnerable young person and a severe breach of trust.
[25] Mr Bennett, by reason of his guilty plea, is already subject to the scrutiny of the Australian Government to decide whether to permit him to continue to live in Australia. It is for the Australian Government to take into account all of the mitigating factors which Mr Bennett has raised, including his long and law-abiding residence in
the 30 odd years he has been there. The possibility that a discharge without conviction will reduce the risk of him being unable to remain in Australia is of a magnitude unknown.
[26] Mr Bennett provided advice by an Australian immigration lawyer which indicates that a discharge without conviction might allow Mr Bennett to simply enter Australia on a “special category” visa, which is generally granted to New Zealand citizens on each arrival and which expires on each departure.7 All non-citizens entering Australia must disclose their criminal convictions on their incoming passenger card. However, Mr Bennett would not be required to divulge his discharge without conviction unless directly asked. I note that Mr Bennett is currently in Australia. It is not known whether he declared his conviction. The possibility was raised that a discharge without conviction would mean the Australian authorities would not be aware of Mr Bennett’s offending and so he could continue his life in Australia.
[27] I do not consider it proportional or appropriate to allow a discharge without conviction to effectively usurp the role of Australian immigration authorities in making their own discretionary decision.8 Nor do I consider the impact of that conviction on the Australian authorities’ discretionary decision a consequence out of all proportion to Mr Bennett’s offending.
Is the sentence nevertheless manifestly excessive?
[28] Counsel for Mr Bennett accepted the Judge’s 12 month starting point as appropriate.
[29] However, counsel then submitted that a further 20 per cent discount from the starting point should have been applied to reflect the severe personal consequences Mr Bennett would face if not allowed to return to Australia. Counsel argued this would bring the imprisonment sentence down to a point which would warrant the imposition of a sentence of community work or community detention.
7 See Migration Act 1958 (Cth) s 32.
8 See similar comments in R v Rollo CA1/04, 8 October 2004; and A [2011] NZCA 328 at [30].
[30] This submission was not accepted by Judge Paul. It could not be. Credit cannot be given for the risk that a relevant responsible authority will exercise a discretion against the interests of the person being sentenced.
[31] In the alternative, counsel for Mr Bennett described the imposition of five months’ home detention, commuted from seven months’ imprisonment, as manifestly excessive. This was on the basis that it departs from a “universally-recognised norm” that terms of home detention usually amount to only half of the term of imprisonment that would otherwise be imposed. Counsel submits that Judge Paul’s departure from this norm required clear reasons, which were not provided.
[32] The Court of Appeal has explicitly rejected the idea that automatic “halving”, or any other mathematical process for determining the ultimate length of a home detention sentence, is the correct legal approach.9 Once home detention is available, the correct approach is an evaluative assessment of all the circumstances to determine the least restrictive sentence appropriate.10 Judge Paul stated clearly that the authorities do not dictate a mathematical exercise and that he considered five months’ home detention the appropriate outcome.11
[33] The task of a Judge determining a sentence appeal is to look at the offending in total and determine whether the sentence imposed was manifestly excessive. The route by which the sentencing Judge reached the final sentence might contain an error, but it is the final sentence which must be assessed.
[34] The diversity of factual situations in which indecent assaults occur results in a wide sentencing range across cases. Surveying sentences for comparable offending committed at the relevant time, I do not consider the end result of five months’ home detention to be manifestly excessive. Parkin v R is illustrative.12 The appellant was found guilty by a jury of two separate instances of offending when he was a 28–29- year-old against an 11–12-year-old between 1980 and 1981. The first charge involved the appellant putting his hand inside the complainant’s pyjama top and fondling her
9 R v Bisschop [2008] NZCA 229 at [18].
10 At [18].
11 R v Bennett [2019] NZDC 738 at [28].
12 Parkin v R [2018] NZCA 404.
chest, inner thighs, and vagina. The second charge involved him making the complainant sit on his thigh and stroke his exposed, erect penis. The complainant was a relative of the appellant’s then wife. The starting point set in the District Court was 22 months, which was not challenged on appeal. The discount of only two months for subsequent good character, and the refusal to commute the sentence to home detention, were challenged. The Court of Appeal allowed the appeal, granting a discount of four months (just over 18 per cent) for subsequent good character and the time elapsed since offending. The resulting prison sentence of 18 months was commuted by the Court of Appeal to four months’ home detention after giving credit for 19 weeks the appellant had spent imprisoned. The Court of Appeal also imposed 400 hours’ community work. While Mr Parkin’s offending was more severe than Mr Bennett’s, and repeated, the Court of Appeal’s response to it indicates the sentence of five months’ home detention imposed on Mr Bennett is within the available range.13
[35] I take into account that Judge Paul’s allowance of 10 per cent for Mr Bennett’s subsequent good character was light. But, in my view the discount of 20 per cent for a late guilty plea was generous.14 The two factors balance.
Result
[36] The appeal against Judge Paul’s refusal to discharge Mr Bennett without conviction is dismissed.
[37]The appeal against the sentence of five months’ home detention is dismissed.
Brewer J
13 See also: R v Richards HC Auckland CRI-2010-004-006987, 15 December 2011; Hirama v R
CA436/02, 23 June 2003; and R v Mokalei CA322/00, 30 November 2000.
14 I take into account the indication a plea of guilty would be entered was given well before the day of trial, but it was still well beyond the first reasonable opportunity.