Benson v The Queen - [2013] NZCA 39

IN THE COURT OF APPEAL OF NEW ZEALAND

CA348/2012
[2013] NZCA 39

BETWEEN TRACEY BENSON
Appellant

AND THE QUEEN
Respondent

Hearing: 14 February 2013

Court: White, Simon France and Asher JJ

Counsel: R Fairbrother for Appellant
M J Lillico for Respondent

Judgment: 1 March 2013 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Ms Benson appeals against her sentence of two years and one month’s imprisonment on charges of supplying methamphetamine and supplying cannabis oil.[1]
[1] R v Singh HC Napier CRI-2010-041-3793, 10 May 2012.
Ms Benson pleaded guilty to the two offences which involved arrangements she had made with a corrupt prison officer at Rimutaka Prison to supply drugs to two inmates, one of whom was her partner.
As the offending occurred while Ms Benson was on parole for previous serious drug offending for which she had been sentenced to five years six months’ imprisonment, she was recalled to prison to complete her sentence which had a final release date of 7 August 2013.
Ms Benson’s sole ground of appeal is that when sentencing her for the current offending in the High Court Ronald Young J erred in failing to consider the totality principle. Mr Fairbrother submits that Ms Benson received an excessive punishment for her offending and the aggravating circumstance. The error of law was the failure to consider the totality against Ms Benson’s personal circumstance of a recall parolee resulting in a disproportionately severe outcome. The sentence was manifestly excessive because the effective term was 43 months when a sentence of less than 24 months could have been expected if the offending had not occurred while Ms Benson was on parole.
We do not agree with the submissions for Ms Benson. For the following reasons we consider that the sentence imposed by Ronald Young J correctly took into account the totality principle and was not manifestly excessive.
First, the Judge noted defence counsel’s argument that Ms Benson was on parole at the time of the offending and that that was an aggravating feature to be balanced with the 17 months subsequently spent by Ms Benson in custody on recall.[2]
[2] At [81].
Second, the Judge said that:[3]
There must be some uplift to mark the fact that this was offending while on parole even though you have been recalled to prison. It would easily have been a much higher uplift if the recall had not occurred. Both aspects are important, the fact that you continue to offend in the same way, and the fact that you did so while on parole add to the seriousness.
[3] At [85].
Three months’ imprisonment was then added as an uplift to recognise both of these facts, namely her previous serious drug offending and her further offending while still on parole.[4]
[4] At [86].
Third, the approach followed by the Judge was in accordance with the decision of this Court in Vernon v R[5] where it was stated:

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 The Queen

Details

AGLC: Benson v The Queen [2013] NZCA 39
Case: [2013] NZCA 39
Decision Date: 1 March 2013

CaseChat Overview and Summary

In Benson v The Queen, the appellant, Tracey Benson, appealed against her sentence of two years and one month’s imprisonment for supplying methamphetamine and cannabis oil. The appeal centred on whether the sentencing judge erred in not adequately considering the totality principle, which seeks to prevent double punishment for the same conduct. Benson's counsel argued that the sentence was excessive and disproportionately severe given her status as a parolee at the time of the offence.

The legal issue before the Court of Appeal was whether the sentencing judge, Ronald Young J, correctly applied the totality principle in his judgment. Specifically, the Court had to determine if the judge properly balanced the aggravating circumstances of Benson's parole status and prior convictions against the sentence imposed, ensuring it did not result in double punishment. The Court also had to consider if the uplift of three months for these aggravating factors was justified and proportionate.

The Court of Appeal found that the sentencing judge correctly applied the totality principle. The judge had acknowledged the aggravating circumstances of Benson's parole status and prior convictions but balanced this by considering the 17 months she had already spent in custody on recall. The uplift of three months for these factors was deemed reasonable, as it was less than the uplifts seen in other cases involving similar offending. The Court concluded that the judge's approach was within his discretion and that the sentence was not manifestly excessive.

The appeal was dismissed, and the original sentence of two years and one month’s imprisonment was upheld.

Orders