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 charge and uplifted by four months for the other offending.  The Judge’s starting point took into account Mr Benson’s criminal record, so far as  relevant.   The Judge noted that Mr Benson was not a recidivist burglar (there is one prior for burglary in 2003) but he did say that the shoplifting was “an extension of a dishonest lifestyle” and that Mr Benson was a “proficient” thief.  The Judge then said he would allow a discount of four months, being approximately 18 per cent, if Mr Benson entered guilty pleas. No issue is or could be taken with that discount which was generous given the point at which the pleas were entered.

[10]     I note that this appeal has been brought despite the fact that the indication the Judge gave largely reflected the submissions that Mr Benson’s (then) counsel made on the indication.  Counsel herself proposed a starting point of 15 to 18 months on the burglary; four months on the other charges; no uplift for prior dishonesty or other convictions and a discount of 25 per cent for Mr Benson’s guilty pleas.

[11]     When it came to sentence (some five or six weeks later), the Judge had Mr Benson’s  letter and  a pre-sentence report.   The letter confirmed  the Judge’s suspicion that Mr Benson was familiar with the premises when he committed the burglary.  As for the report, the writer assessed Mr Benson to present a low risk to the community; highly likely to reoffend; no prospect of paying reparation and with a history of non-compliance with conditions attached to community based sentences. This ruled out home detention which had been left open at the indication.  No issue is taken with the refusal of home detention.

Discussion

[12]     The point taken on the appeal is that the 18 months starting point on the burglary was too high and should have been no more than 12 months.   Counsel would then seek to retain the same uplifts for the shoplifting and discount for the guilty pleas.  Given the view I take the point is irrelevant but on those figures the discount becomes 25 per cent – substantially more than appropriate given the stage at which the pleas were entered.

[13]     On the principal point, however, counsel submits first that there is no tariff case for burglary and that each case is to be judged on its merits. This is correct.2

[14]     Secondly, on Mr Benson’s view of it, illegal activity (drug dealing) was taking place on the premises.   Counsel submits that this not only increased the likelihood of burglary at the premises but reduced the breach of trust or violation otherwise inherent in offending of this nature.

[15]     Quite aside from the point(s) of principle that might arise on this submission, there is simply no evidence before the Court that the premises were being used as Mr Benson said in his letter or that the $6,000 derived from drug dealing, as opposed to, for instance, cash takings from the shop.  So I put the submission to one side.

[16]     More generally I have considered the authorities to which counsel referred me  being  Senior  v  Police,  Arahanga  v  R  and  Iwikau  v  Police.3      I  have  also considered the judgment of Kos J in Newton v Police,4  and the many authorities to which he referred.

[17]     In Mr Benson’s favour, this was an offence committed during the day, no doubt carried out speedily and, although there was a risk of confrontation, no confrontation in fact occurred.  On the other hand, as the Judge said, the offending was targeted and pre-meditated, that part of the premises was private and the sum

involved was substantial.

2      See Arahanga v R [2012] NZCA 480 at [78].

3      Senior v Police (2000) 18 CRNZ 340 (HC); Arahanga v R, above n 2; and Iwikau v Police

[2012] NZHC 2027.

4      Newton v Police [2012] NZHC 2829.

[18]     Taking the authorities and those factors into account, I am not persuaded that the 18 month starting point was excessive.  Even if I were persuaded that it was on the high side (and I am not), only a modest reduction could possibly be warranted. Moreover, on any reconstruction, there might well be a specific uplift for the aggravating personal feature of Mr Benson’s criminal history which, aside from the burglary to which I have referred, includes several convictions for shoplifting, one for receiving stolen property and one of using a document for pecuniary advantage.

[19]     The critical  issue is  always  the end  sentence.    I am  not  persuaded  it  is manifestly excessive and I dismiss this appeal accordingly.

..................................................................

M Peters J