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Benson v Police

Benson v Police

Case [2020] NZHC 1946 5 August 2020

Sentencing

Remorse

Rehabilitation

Discount for Mitigating Factors

Guilty Plea Discount

Appeal Against Sentence

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2020-441-16

[2020] NZHC 1946

AHDAN BENSON

v

NEW ZEALAND POLICE

Hearing: 4 August 2020

Appearances:

S Jefferson for the Appellant F E Cleary for the Respondent

Judgment:

5 August 2020

JUDGMENT OF COOKE J

[1] Mr Benson appeals against the sentence imposed by the District Court following the entry of guilty pleas to four charges of burglary,1 one charge of intentional damage2 and one charge of theft.3 The appellant was sentenced to 25 months’ imprisonment and ordered to pay $4,531.20 in reparations.4

[2]On appeal the appellant says that the sentencing Judge:

(a)failed to provide appropriate discounts for remorse and rehabilitation;

1      Crimes Act 1961, s 231; maximum penalty of 10 years’ imprisonment.
2      Section 269; maximum penalty of seven years’ imprisonment.
3      Sections 219 and 223; maximum penalty of one years’ imprisonment.
4      New Zealand Police v Benson [2020] NZDC 11862 [District Court judgment].

BENSON v NEW ZEALAND POLICE [2020] NZHC 1946 [5 August 2020]

(b)erred in only imposing a 15 per cent discount for the factors under s 27 of the Sentencing Act 2002; and

(c)applied a three-step analysis when factoring the guilty plea discount rather than a two-step analysis as adopted in the Court of Appeal’s recent decision in Moses v R (Moses).5

[3] The appellant takes no issue with the starting point or uplifts for other offending and previous offending.

Background

[4] The first charge of burglary was on 2 November 2019 when Mr Benson was at the Black Bridge Transfer Station in Haumoana. Using a large piece of metal, he attempted to force the door open. He could not get in and damaged the door, causing
$718 worth of damage.

[5] On the evening of 5 January 2020, Mr Benson was then at Tamatea Intermediate School where he levered open a window. He climbed in and took 14 UE Boom 3 Speakers valued at $2700, five Endeavour HDMI chords and two HDMI cables.

[6] Two days later, he was driven to the Eastern Institute of Technology (EIT) Napier campus. He entered the hospitality block, found a TV attached to the wall and removed it. He left the building and placed the TV in the rear of the car before leaving.

[7] Four days later, Mr Benson was at the EIT campus on Gloucester Street where he forced entry into a building and use a spade to break into a vending machine which left the machine inoperable.

[8] On 14 January 2020, Mr Benson forced entry into the rear door of the Pettigrew Green Arena in Taradale, stealing a note and coin holder and damaging a vending machine, absconding with $600 cash.

5 Moses v R [2020] NZCA 296 [Moses].

[9] On 16 January 2020, Mr Benson was at the Napier Golf Club. He forced his way into the building, took a box of Whittaker’s chocolate bars before leaving. He was arrested later that…

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 Benson v Police

Details

AGLC: Benson v Police [2020] NZHC 1946
Case: [2020] NZHC 1946
Decision Date: 5 August 2020

CaseChat Overview and Summary

Benson appeals against the sentence imposed by the District Court following his entry of guilty pleas to multiple charges. The appellant contends that the sentencing Judge made several errors in determining the appropriate sentence. First, he claims that the Judge failed to provide an adequate discount for remorse and rehabilitation. Second, he argues that the Judge should have applied a 20 per cent discount for the factors under s 27 of the Sentencing Act 2002, rather than the 15 per cent discount that was imposed. Lastly, he submits that the Judge should have applied a two-step analysis when factoring the guilty plea discount, rather than the three-step analysis that was adopted.

The Court considers the appellant's arguments in turn. While the Court acknowledges that the appellant has expressed remorse and a willingness to engage in rehabilitation, it finds that the Judge did not err in not imposing an additional discount for these factors. The Court finds that the 15 per cent discount for the s 27 factors was appropriate, noting that the appellant's circumstances were adequately addressed. Finally, the Court holds that the particular approach adopted by the Judge does not evidence that the 25-month sentence was manifestly excessive. The Court ultimately finds that the appeal should be dismissed.

Orders