Benson v Police - [2015] NZHC 3223

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-0044 [2015] NZHC 3223

IN THE MATTER
of an appeal against sentence pursuant to

s 250 of the Criminal Procedure Act 2011

BETWEEN

PAUL MICHAEL BENSON Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 December 2015

Appearances:

J C Hannam for Appellant
S J Simpkin for Crown

Judgment:

15 December 2015

JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 15 December 2015 at 2.45 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Hannam & Co Lawyers Ltd, New Plymouth
C & M Legal, Crown Solicitor, New Plymouth

Introduction

[1] Mr Benson faced one charge of burglary, one of trespass and two of theft. At Mr Benson’s request, Judge A Roberts gave a sentencing indication on 7 May 2015, the indication being 18 months’ imprisonment.

[2] Mr Benson pleaded guilty on 18 June 2015 and the Judge imposed sentence in accordance with the indication. Mr Benson now appeals on the ground that the sentence is manifestly excessive.1

Background

[3] The events giving rise to the charges against Mr Benson are as follows.

[4] First, shortly after 11 am on 29 November 2014, Mr Benson entered a shop in New Plymouth. As the shopkeeper attended to customers, Mr Benson went into a private area where the shopkeeper lived. Once in that area Mr Benson stole $6,000 hidden in a clock and left by another door.

[5] Mr Benson initially denied the offending but in a letter to the Judge on sentencing (not at the time of the indication) he said that the shopkeeper was a cannabis dealer; that Mr Benson had been to the shop previously to buy cannabis; that it had come to Mr Benson’s attention that the shopkeeper was “letting” two of Mr Benson’s cousins (14 and 15 years old) “run around selling big lots of cannabis on his behalf”; that he, Mr Benson, was upset about that; and that he had gone to the shop that day to buy more cannabis but instead of paying just took the money from the clock.

[6] Secondly, on 2 December 2014 Mr Benson stole goods from the Warehouse with a retail value of $380. The Warehouse had served a trespass notice on Mr Benson some six months earlier and the notice was still effective as of December
2014 – hence the trespass charge.

1 Police v Benson [2015] NZDC 11268; and Criminal Procedure Act 2011, ss 250 – 251.

[7] Thirdly, on 3 January 2015 Mr Benson went to a Bunnings store. He put a drill, its charger and batteries in his bag and then left without paying. The kit was valued at $690. Mr Benson later sold the items online for $250.

Sentencing

[8] When sentencing Mr Benson, the Judge asked that his notes be read with the indication, so I shall start with that.

[9] The Judge adopted a starting point of 18 months on the burglary…

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.

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Details

Case: [2015] NZHC 3223
Decision Date: 15 December 2015

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal against the sentence imposed by Judge A Roberts in the case of Benson v Police. Mr Benson, the appellant, was convicted of burglary, trespass, and theft. He appealed the sentence of 18 months' imprisonment, arguing it was manifestly excessive. The appeal was heard on 14 December 2015 and the judgment was delivered by Justice M Peters on 15 December 2015. The legal issues before the court were whether the starting point of 18 months for the burglary charge was appropriate and if the overall sentence was excessive.

The court examined the nature of the crimes, which included a burglary where Mr Benson stole $6,000 from a shop, theft of goods from The Warehouse, and theft of a drill kit from Bunnings. The court noted Mr Benson’s criminal history, which included previous convictions for shoplifting, receiving stolen property, and using a document for pecuniary advantage. The Judge had taken into account Mr Benson's criminal history and the nature of the crimes in determining the starting point for sentencing. Mr Benson's counsel argued that the starting point for the burglary was too high and should have been no more than 12 months. However, the court was not persuaded that the 18-month starting point was excessive and found that even if it were on the high side, only a modest reduction would be warranted.

Justice Peters concluded that the overall sentence was not manifestly excessive, considering the circumstances of the crimes and Mr Benson’s criminal history. The appeal was dismissed.

Orders