Benson v Police

[2020] NZHC 1946

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 day.

District Court judgment

[10]   The District Court arrived at a starting point of 30 months’ imprisonment for the burglary charges and then included a six-month uplift for the breach of release conditions, criminal damage and theft, and four months for the previous offending.6 This led to a total of 40 months’ imprisonment.

[11]   The Judge then gave a discount of 15 per cent arising from personal factors outlined in a cultural report. The Judge said this led to 34 months’ imprisonment, before deducting a further 25 per cent, leading to an end sentence of 25 months’ imprisonment.7 The Judge noted they would not have granted leave to apply for home detention due to the nature of the appellant’s offending and of his previous offending. The Judge also cancelled the appellant’s release conditions. The six-month sentence for intentional damage and the two months’ imprisonment for breach of release conditions is to run concurrently with the final sentence.8 Finally, the Judge ordered reparations totalling $4,531.20.

Principles on appeal

[12]   This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. The Court must allow the appeal if there is an error in the sentence imposed and the Court is satisfied a different sentence should be imposed.9 A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion.10 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.11

6      District Court Judgment, above n 4, at [7].

7 At [8].

8 At [9].

9      Criminal Procedure Act 2011, s 250.

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482; B v R [2011] NZCA 331 at [9]; and

Lawrence v R [2011] NZCA 272 at [11].

11     Ripia v R [2011] NZCA 101 at [15].

Discounts for remorse and rehabilitation

[13]   The appellant first submits that there should be a discount for remorse of at least 10 per cent, citing the cultural report under s 27 as evidence of his remorse and his attempt to undergo restorative justice to apologise to his victims. His counsel also points to the letters he has written that state he is extremely sorry, which were not available to the District Court.

[14]   Additionally, the appellant submits that the District Court failed to address Mr Benson’s commitment to rehabilitation address his underlying issues. The appellant notes the s 27 report as evidence of the appellant seeking help and that, since turning 30 years of age, he has reached a point of realisation that “unless he changes he will spend the rest of his life in prison”. The appellant submits he is willing to engage with ACC counselling, Mental Health and Addiction Services and the Drug Treatment Programme in prison. This willingness to engage, the appellant says, should attract a discount of at least 10 per cent.

[15]   The respondent submits that the District Court did not have the letters of remorse available, and it was not required to impose a discount over and above that reflected in the full guilty plea discount. As to rehabilitation, the respondent submits that it agrees with the District Court’s scepticism over the appellant’s enthusiasm for rehabilitation. They note the District Court’s observation:

[4] You say that you are open to all forms of intervention to help you, any courses or programmes. You have had opportunity in the past, complied well at the beginning and then dropped off. You have got quite a history of offending unfortunately including quite a few previous convictions for burglary. You have had some engagement with the Mash Trust in the past and you may be eligible for the drug treatment programme whilst in custody. …

[16]   As the Court of Appeal has recently reiterated in Moses, remorse is a personal mitigating factor that may justify a separate discount from a guilty plea discount.12 This requires more than the bare acceptance of responsibility but need not be extraordinary and courts will look for tangible evidence such as engagement in restorative justice processes.

12     Moses, above n 5, at [24].

[17]   There is evidence to show Mr Benson’s remorsefulness, through the letters written to his victims and willingness to engage in restorative justice. As the District Court judgment records, there may be some scepticism about the effectiveness of rehabilitation given Mr Benson’s past history, but it is evident from the s 27 report some willingness has been expressed.

[18]   In some circumstances there may be reason to give an additional discount for remorse of between five and 10 per cent if such factors are not already reflected adequately in other assessments. Here the District Court Judge gave a 15 per cent discount for the personal factors revealed in the s 27 cultural report. I see no error for the Judge failing to give an additional discount specifically for remorse or the potential for rehabilitation. Given the history of offending, such expression by itself may not have been regarded as truly significant. The expressions of remorse have only been expanded upon on appeal. The impact on culpability arising for the reasons addressed in the cultural report were significant. It is not surprising that the Judge focused on those when discounting for personal mitigating factors.

[19]   I do not accept that the Judge erred in failing to give an additional discount for these factors.

Discounts for s 27 factors

[20]   The appellant submits that the 15 per cent discount given in the District Court was inadequate. The appellant seeks a discount of at least 20 per cent, noting that the appellant’s behaviour was characterised by systemic deprivation from poverty, sexual abuse, educational underachievement, drug and alcohol abuse and criminal offending. Counsel for the appellant in the District Court sought only a 15 per cent discount for the s 27 report. The appellant has since changed his counsel.

[21]   Mr Benson’s cultural background is New Zealand European/Pākehā, and the systemic deprivation suffered is one that is not based on the colonisation of Māori. So the deprivation does not result from “loss of land, language, culture, rangatiratanga, mana and dignity” of Māori which are matters that Whata J held, in Solicitor-General v Heta, “may be regarded in a proper case to have impaired choice and diminished

moral culpability”.13 The respondent accepts discounts were available, but submits that the discount was generous in comparison to R v Allen, R v Rakuraku, R v Sanders,

R v Waitokia and R v Rudolph.14

[22]   In all but one of the cases cited, the offenders were Māori. There are also cases where minority-ethnic people have been given discounts based on s 27 factors.15 But the particular culture the defendant belongs to is not the key point. The question still remains whether there has been systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity.

[23]   In relation to Māori offenders the Courts are becoming increasingly familiar with the impacts of colonisation in New Zealand, and how that has ultimately affected subsequent generations appearing before the courts. This has now become apparent as a matter of institutional knowledge.16 But that does not mean that those who come from other cultural backgrounds cannot demonstrate similar effects. The question remains an evidential one.

[24]   Here Mr Benson was shown to have faced a traumatic childhood, and suffered systemic deprivation. The fact that he is of a Pākehā background is not disqualifying. What matters is the effects of cultural deprivation on culpability. As the report writer said he “has suffered and experienced the same systematic deprivation and disadvantages as those persons in the case law …”. He has similarly lost a sense of community identity and guiding values as a consequence of systemic deprivation. In my view a discount for this factor was available.

[25]   I do not accept, however, that the 15 per cent discount was inadequate. Ultimately there is no reason why Mr Benson’s circumstances can be said to have not been appropriately addressed by the discount the Judge gave. As the Crown submits, comparison with other cases does not suggest that the factor has been given less than

13     Solicitor-General v Heta [2018] NZHC 2453; cited with approval by the Court of Appeal in Zhang v R [2019] NZCA 507 at [159].

14     R v Allen [2020] NZHC 1796; R v Rakuraku [2014] NZHC 3270; R v Sanders [2019] NZHC 164;

R v Waitokia [2018] NZHC 2146; and R v Rudolph [2019] NZHC 1050.

15     R v Vea [2019] NZHC 1587; R v Tae [2020] NZHC 1119; and R v Larson [2020] NZHC 237.

16     See Moana Jackson He Whaipaanga Hou: The Maori and the Criminal Justice System: A New Perspective (Department of Justice, February 1987).

an appropriate weight. Mr Benson has not been able to demonstrate a comparable case showing a greater discount is usually given in his circumstances.

[26]Accordingly I dismiss this ground of appeal.

The two-step analysis as stated in Moses

[27]   The appellant finally submits that the recalculation of the sentence based on a two-step analysis as outlined in Moses would result in an end sentence of 24 months.17

[28]   Whilst the Court of Appeal has adjusted the way in which discounts are to be approached in Moses, it is important to recognise that sentencing Judges should always have kept the end sentence in mind when applying either a three-step, or two-step process. It should not be assumed that the ultimate end sentence has become longer as a consequence of applying a particular approach. I am not prepared to assume that an error has been made here simply because a three-step, rather than two-step approach was applied. The question remains whether the end sentence was manifestly excessive.

[29]In Moses the Court of Appeal states:

[46]A two-step methodology should be used:

(a)the first step, following Taueki, calculates the adjusted starting point, incorporating aggravating and mitigating features of the offence;

(b)the second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

[30]   The District Court here arrived at a starting point of 30 months. The Judge then added six months for a breach of release conditions, criminal damage and theft. A further four months were added for Mr Benson’s previous convictions. These were therefore treated as the first step, which become the “adjusted starting point”. The

17     Moses v R, above n 5.

discount for s 27 factors was then applied as a percentage of this 40-month “adjusted starting point”.

[31]   Mr Jefferson submits that the 25 per cent deduction for the guilty plea was only deducted after the deduction for mitigating circumstances (40 months, less 15 per cent being 34 months, with the 25 per cent discount then resulting in 25.5 months, rounded down to 25 months). He says it should have been deducted from the 40 month starting point (40 months, less 15 per cent for mitigation and 25 per cent for guilty plea, being 24 months).

[32]   It is not quite that straightforward, however. If the first and second steps are strictly observed in accordance with Moses, the four months added for Mr Benson’s previous convictions might arguably be treated as an aggravating factor personal to the offender, and therefore addressed only at the second step. The six-month discount also conflates factors, which are personal (breach of release conditions) and factors relevant to the offending (criminal damage and theft). They could have been added to the first step for ease of calculation in this case.

[33]   Whatever approach is applied they lead to a very similar ultimate sentence. This illustrates the point made above — what ultimately matters is the end sentence. The complications involved in deciding whether factors are relevant to the offence, or the offender, should not detract from that point. Here the particular approach adopted does not evidence the 25-month sentence was manifestly excessive. It is true that one can make adjustments to the calculations as a consequence of the change introduced by Moses and arrive at a sentence of approximately 24 months. At that step the precise calculations can be said to be important, as once the sentence falls to 24 months the short-term sentencing rules become engaged. But that would also have been apparent to the District Court Judge, who specifically noted that leave to apply for home detention would not have been granted. It is important that sentencing questions do not become focused on matters of formulas and arithmetic. The fact that the sentence might be thought to come closer to 24 months does not means the sentence was manifestly excessive.18

18     See Kennedy v Police [2019] NZHC 2644 and Annalingam v Police [2017] NZHC 2803.

[34]For all of the above reasons the appeal is dismissed.

Cooke J

Solicitors:

S Jefferson, Napier for the Appellant

Crown Solicitors, Napier for the Respondent