R v Benbow
[2024] NZHC 451
•5 March 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-009-8869
[2024] NZHC 451
THE KING v
DAVID CHARLES BENBOW
Hearing: 5 March 2024 Appearances:
B Hawes and C J Boshier for Crown K J Gray and K J Basire for Defendant
Judgment:
5 March 2024
SENTENCING REMARKS OF EATON J
R v BENBOW [2024] NZHC 451 [5 March 2024]
Introduction
[1] David Charles Benbow, you appear for sentencing having been found guilty by a jury of your peers of the murder of Michael McGrath.
[2] The maximum penalty for murder is life imprisonment. Ms Gray, on your behalf, appropriately concedes that I must today sentence you to life imprisonment and that will be the sentence I shortly impose. What I must determine is how much of that life sentence you must serve before being eligible to apply for early release on parole. That is what is called the minimum period of imprisonment, I will refer to it as the MPI.
[3] I acknowledge the family and friends of Michael McGrath who are in Court today. I particularly thank those who have, this morning, read their victim impact statements and I will address those in a little bit more detail shortly.
[4] I also acknowledge the presence in Court, Mr Benbow, of your own family, your supporters and particularly your mother who I know has been present throughout both of your trials.
[5] Many of those who are present in Court today will be very familiar with the facts of your offending, and particularly those who sat through almost 16 weeks of trial in 2023. But sentencing is a public function, and it is important, within this public setting, that I set out the facts upon which you are to be sentenced. Mr Benbow, I am very conscious that you maintain your innocence. But, as has been acknowledged by your counsel, you understand that I must sentence you in accordance with the verdict of the jury.
[6] Inevitably, as I summarise the facts this morning, I will make factual findings that I consider to be consistent with the jury’s verdict. Those are facts which will ultimately inform my decision as to the appropriate MPI.
Facts
[7] As at early 2017, Mr Benbow, you were a lifelong friend of Michael McGrath. Growing up, you were very close to his family. In your younger days you called his mother “Mum”. Your friendship with Mr McGrath continued after you commenced a relationship with Joanna Green and had your daughters. You and Ms Green had a particularly close relationship with Mr McGrath. He was willing and comfortable to share with you his mental health struggles at a time he was diagnosed with anxiety and a depressive disorder in 2010.
[8] Over the years, you engaged Mr McGrath to undertake some minor and, indeed, some more major building projects at your family home. That included the very impressive playhouse that he built for you at Candys Road and the extensive deck that he had almost completed shortly before your separation from Ms Green.
[9] Following your separation from Ms Green on 3 March 2017, your contact with Mr McGrath effectively ended. From there, a closer bond developed between Ms Green and Mr McGrath.
[10] He had helped Ms Green move out of Candys Road and was storing some of her property in his house at Checketts Avenue. Some weeks later, that closer bond developed into an intimate relationship between Ms Green and Mr McGrath, a relationship that was founded on their longstanding relationship and trust of each other. Simon McGrath spoke of the twinkle he saw in his brother’s eye when he last saw him at the regular Tuesday dinner at their mother’s on 16 May.
[11] I accept that your primary focus and concern, post-separation, was for your two youngest daughters. However, as time went on and you heard snippets of information regarding Mr McGrath becoming part of Jo Green’s life, your resentment towards him escalated. I am satisfied that, by the start of May 2017, you were suspicious that Mr McGrath had commenced an intimate relationship with Ms Green. You felt betrayed and consequently angry that Mr McGrath was forging a relationship with your daughters, a relationship that you were being forced to compromise as a consequence of your separation from Ms Green.
[12] Throughout this period, your mental health was compromised. Dr O’Gorman diagnosed a depressive illness and prescribed medication. You were not eating or sleeping well. You were off work. You recognised that you were completely out-of-sorts and, in response, you were taking steps to address your poor health, your poor mental health. You were attending EAP counselling, reading a self-help book, trying to improve your diet, had joined the gym for physical fitness, and were trying to focus all your energy on your relationship with your daughters.
[13] But, notwithstanding your best endeavours, the evidence of your confidants, and in particular Ms Green’s sister Toni Green to whom you were so close, speaks volumes. On 1 May you spoke to her. She described you as sounding terrible, heartbroken and wanting your family back. She said you had a suspicion about Michael and Jo. She was so concerned she wanted to see you in person and she did so on 8 May. On seeing you, she was taken aback by your physical appearance and your emotional state. She described you as ranting and angry about Mr McGrath’s relationship with Ms Green. She said you kept bringing the conversation back to that relationship. She described you as distraught at losing Jo and the girls, Toni herself, and her wider family. You told her Michael McGrath was seeing more of the girls than you were. You mentioned that your daughter had told you she had seen Michael and Jo kissing. Toni described you as being very angry about Mr McGrath in your words “shagging” your ex-partner. She said, as at 8 May, you were “very angry and sad”.
[14] Although I accept it was not a statement of your intent to kill Mr McGrath, I do not consider it to be coincidence that, in between those two discussions with Toni Green, you told your EAP counsellor that you wanted to “annihilate” Michael McGrath. There is no question that you harboured ill will towards him.
[15] I am satisfied that, in early May 2017, you were ruminating about Michael’s relationship with Ms Green. You were coming to the realisation you could no longer protect and retain the family unit. You had worked so hard, I accept, over many years to provide security for your family, and you sensed that all you had worked for was unravelling. The “Dear Jo” letter you wrote gave rise to concerns for your well-being.
[16] That state of mind provides the essential backdrop as to what then took place just over a week later. You had had little or no contact with Michael McGrath since early March 2017. But things changed from 16 May. On that day you turned off the CCTV cameras at your home address in Candys Road and the next day you initiated contact with Mr McGrath, perhaps to test the waters or to encourage Mr McGrath to feel comfortable with your renewed contact. Whatever the actual state of your knowledge as to the relationship between Michael McGrath and Joanna Green, it does seem you did not appreciate the extent to which they were sharing information with each other. Mr McGrath was telling Ms Green about your renewed interest in his company.
[17] On 17 May, you dropped into Mr McGrath’s house unannounced with a false story about your car breaking down at the Doctors. You asked him to give you a ride back to your address to give you a hand shifting a rabbit hutch and a cast iron bath. He was agreeable. He drove you home and helped you shift those items. The following day, 18 May, you again arrived at Mr McGrath’s house, this time in your own car. You told Mr McGrath that your friend, your good friend, Adrian Reid had fixed your starter motor. I find that was a lie. You invited Mr McGrath to come to your place for dinner. Mr Benbow, given how you felt about the relationship between Jo Green and Michael McGrath, I do not accept that was a genuine invitation for old mates to socialise. Resurrecting what had become a highly strained relationship was not your motivation for inviting Michael to dinner. Getting him over to your place on his own was integral to the plan that you had by then conceived to harm Michael McGrath. You failed to tell Police about that visit, and you did not bank on Mr McGrath telling Ms Green about that visit, about Adrian Reid having supposedly fixed your car or the dinner invitation.
[18] On Sunday, 21 May, you again turned up unannounced at Mr McGrath’s property. This was the third time in five days. And this is the occasion when you arranged for Mr McGrath to meet you at Candys Road at 9 am the following day, 22 may, to shift sleepers.
[19] I doubt Mr Benbow that you would have admitted making that arrangement but for the fact Ms Green sprung it on you when she spoke to you on the evening of 23 May and called you out when you initially said you hadn’t seen Mr McGrath since the previous Wednesday.
[20] In my assessment, Mr McGrath was apprehensive about your attempts to reconnect with him. I think it likely he agreed to help you out, both on the Wednesday and again on the Monday, in order to avoid a confrontation. He must have felt somewhat stuck in the middle.
[21] The morning of 22 May was cold and frosty, but that was not something that would deter Mr McGrath from keeping the appointment he had made with you. When it came to helping those to whom he had promised to help, Mr McGrath was reliable. And so, having got up and likely having a shower and a cup of tea, he set off just before 8.55 am to keep the 9 am appointment with you at Candys Road.
[22] Consistent with the Crown case presented at trial and the jury’s verdict, I find that the Wales Street CCTV footage at 8.54 am records Mr McGrath en route to your property, as does the New World CCTV footage which only vaguely, I accept, records a dark station wagon turning right out of Oakridge Street into Nicholls Road in the direction of Candys Road. On that evidence, Mr McGrath would have arrived outside your address at Candys Road very shortly before 9 am. It was therefore no coincidence that Mr Robinson, returning home on an unfamiliar route from the Lyttelton Port Company that morning, drove past your address and saw two persons fitting the descriptions of you and Mr McGrath to his left, and a vehicle matching Mr McGrath’s to his right. I am satisfied that Mr Robinson saw you and Mr McGrath and that, other than you Mr Benbow, he was the last person to see Michael McGrath alive.
[23] At your request, Michael McGrath had come over to help you shift sleepers. That was a ruse, it was a ruse to entice the loyal and reliable Michael McGrath to your address. What happened after the two of you entered your property is not the subject of direct evidence. A guilty verdict means the jury has accepted that, shortly after Mr McGrath came on to your property, you killed him. The most likely mechanism
of murder was shooting Mr McGrath in the head with a .22 rifle using subsonic ammunition. The absence of forensic evidence at your property points to you having carried out the murder carefully, in accordance with a preconceived plan, in order to avoid leaving trace evidence.
[24] You must have left Mr McGrath’s body and his vehicle somewhere on your property while you attended your EAP counselling. You were able to present at counselling exhibiting no signs at all of what had just transpired. Indeed, throughout your interactions with friends and the Police that followed, you consistently presented as calm and confident.
[25] At 3.26 pm on the afternoon of Monday 22 May, you were seen leaving the Challenge Tai Tapu petrol station having bought fish bait. Shortly after 3.27 pm, that is just a minute later, a vehicle with features consistent with your vehicle was seen travelling in the direction of Akaroa. That vehicle was not seen returning. The Crown case was that Mr McGrath’s body and other incriminating evidence were within your car and that during that journey you secreted his body and associated items in a location or locations that have never been identified. I am satisfied Mr Benbow that is what you did. You disposed of evidence that might connect you to the murder in accordance with a plan you had developed in the days leading up to 22 May.
[26] Shortly after 7 pm that evening, you called your good friend Paul Floris and then your other good friend Ashley Beveridge asking for a battery charger for your mother’s car. At around 8.30 pm, having not made contact with either man, you turned up unannounced at Mr Beveridge’s, again asking for a battery charger for your mother’s car. In my view Mr Benbow it would have been a most unlikely coincidence that you urgently needed a battery charger for your mother’s car the day before you were to pick up that vehicle and at a time when you were alleged to have had Mr McGrath’s car with its unhealthy battery in the garage at Candys Road.
[27] I am satisfied you lied to your friends about the battery charger. It wasn’t for your mother’s car. You needed a battery charger because you couldn’t start Mr McGrath’s car. And, with Mr Beveridge’s jump starter, you managed to get his vehicle started and, in the dark of night, you returned that vehicle and parked it up the driveway at 53 Checketts Avenue. You locked the car and you took the keys.
[28] You knew Mr McGrath’s routine. You knew that it would be unlikely that anyone would notice him missing until he failed to turn up for the regular dinner with his mother and brother on a Tuesday night.
[29] So, on the following Tuesday, 23 May, you knew you had time to continue your clean-up operation. I am satisfied it was you, driving your car again, that was seen travelling past the Challenge Tai Tapu garage, in the direction of Akaroa and returning 90 minutes later. That is another trip you failed to tell the Police about. You didn’t tell the Police about either trip you made through Tai Tapu. Over the relevant period your car had travelled distances that are at odds with your account of your movements over the relevant days. At 1.27 pm on the Tuesday, you were at the Parkhouse Eco refuse station getting rid of only a small amount of rubbish from the boot of your car. Again, you failed to tell the Police about that trip. When the Police told you they had evidence about it, you gave details as to what you threw out. Those details do not match what can be seen on the CCTV evidence. It also made no sense that you would pay dump fees to get rid of such a small amount of rubbish, and in particular clothing, when you could have either waited two days until your red bins were emptied or, alternatively, used your mother’s red bin, she having gone away overseas.
[30] The guilty verdict means that you were both meticulous but, I also consider, fortuitous in having been able to permanently dispose of incriminating evidence, and in particular Mr McGrath’s body, your firearm and accessories and any forensic evidence. In my view, that could not have been achieved absent significant planning.
[31] You knew you would be the subject of a Police investigation. That was plain given Ms Green had pointed the finger at you as early as the evening of 23 May. You were interviewed by the Police. At interview, you were deliberately vague and non- committal. You did not tell the Police the truth as regards your movements over the relevant days. Rather, you adopted what I would describe as a “wait and see” approach. Your strategy was to avoid providing information the Police might be able prove was untruthful.
[32] Standing back and trying to make sense of what happened Mr Benbow, I take the view you were not willing to stand by and watch another man not only forge a loving relationship with the mother of your children, but to step into a fatherly role to your daughters, daughters who I accept unreservedly that you love deeply. I am satisfied the guilty verdicts reflect the jury having accepted the events that I have summarised in the days leading up to 22 May were circumstantial strands evidencing your detailed planning of the murder of Michael McGrath.
[33] That deals with the facts as I have found them to be. I will return to them shortly when I consider s 104.
Victim impact statements
[34] I have listened carefully to victim impact statements this morning. Without question, it takes real bravery to read statements of that nature in a public setting such as a court. I am, having presided over both trials, acutely aware of the pain that Mr McGrath’s family and friends have suffered and continue to suffer today. The pain and suffering of those who were very closest to Michael McGrath will feel as raw today as it did nearly seven years ago when he went missing. I acknowledge the void that Michael’s death has left in each of your lives. His death has robbed his parents of a son, and a brother of his only sibling. Mr Benbow, you have denied your former partner a life with a man she believed to be her soul mate.
[35] On my assessment, Michael McGrath was an uncomplicated man whose very strongest bonds were with his family. For that bond to be severed by someone the family knew so well and, most importantly, trusted has caused so much pain, pain that is enduring.
[36] For a long time, the shock and distress of Michael’s disappearance was perhaps tempered by a sense of hope, initially hope that Michael might be found and, as time went on, hope that his body would be recovered. That sense of hope was no doubt enlivened following your arrest in 2019 and perhaps even briefly after the jury’s guilty verdict, but to no avail. I am very conscious this has been a very long and very challenging road for all of Michael McGrath’s family and friends and that, regardless of the trials, the jury’s verdict and today’s sentencing process, you will continue to be pained not knowing where Michael is.
[37] I am also conscious that no sentence that I might impose will redress that pain that began almost seven years ago.
[38] Notwithstanding your denial of guilt Mr Benbow, I hope you can recognise if not sympathise with Mr McGrath’s family.
[39] And, as I said at the outset, I also acknowledge the presence in Court of your family and supporters, Mr Benbow. I have no doubt your elderly mother has been a tower of strength to you, as have other family members and that she will continue to offer you support as you come to terms with the jury’s verdict and the inevitable consequences that follow. I am conscious that the last seven years have imposed significant strains on members of your family, including in that of course your daughters.
Personal circumstances
[40] You are 55 years old. You have no previous convictions. You have no history of violence. I have read the pre-sentence report and the many character references that Ms Gray has filed on your behalf. There is a consistent description within that material of a man who is hard-working, loyal, kind and generous, somebody who regularly lends others a hand in times of need. I acknowledge, as was clear from the evidence given at trial, you are and remain a devoted and loving father to all three of your daughters but, perhaps most relevantly in the context of this prosecution, to the two youngest.
[41] Both the evidence I heard at trial and the material that has been presented for sentencing tells me this offending that was completely out of character. It is not suggested that you have been violent under stress in the past. Indeed, your friend Mr Evans described you as being someone who is non-confrontational, in his words, more of a resolver.
[42] You have always been in skilled employment, and you have remained close friends with a former work colleague who speaks highly of you.
[43] The pre-sentence report tells me that you are assessed as being a low likelihood of further offending but, given your sudden escalation into serious offending, you are assessed that, in the event that you did re-offend, there is a very high potential for you to cause harm.
[44] As I have observed, I am conscious that you continue to deny any involvement in the disappearance of Michael McGrath. Consequently, you do not express any remorse whatsoever. You continue to portray yourself as a victim of Mr McGrath’s disappearance. Whilst that does not aggravate your offending, it does mean you are not entitled to any credit for remorse or prospective rehabilitation.
Approach to sentencing
[45] The sentence that I must impose today is a sentence of life imprisonment. What I must determine is the MPI that you will serve before you are eligible for consideration for release by the Parole Board.
[46] Any person who is sentenced to life imprisonment must serve a minimum of ten years before being eligible to seek early release.1 What I must assess is how much longer than ten years you must first serve. In fixing the MPI, I must assess your culpability against other cases of murder, I must have regard to the aggravating and mitigating factors of your offending, I must consider whether a higher MPI is required in order to satisfy the sentencing purposes of accountability, denunciation, deterrence and community protection.2
[47] The Sentencing Act sets out a number of circumstances which, if applicable, will require the sentencing Court to impose an MPI of 17 years unless it would be manifestly unjust to do so.3 This requires the Court to undertake a three-step process. First to consider the notional MPI that would be imposed, then to consider whether any of the s 104 factors are engaged and finally, if one or more of those factors are engaged but the notional MPI is less than 17 years, to then consider whether an MPI of 17 years would be manifestly unjust.4
1 Sentencing Act 2002, s 103(2).
2 Section 103(2)(a) – (d); R v Williams [2005] 2 NZLR 506 (CA) at [49].
3 Section 104.
4 Davis v R [2019] NZCA 40, [2019] 3 NZLR 43 at [25].
The notional MPI starting point
[48] As to the notional MPI starting point, Ms Gray submits that starting point should be around 14 years. Mr Hawes for the Crown submits an appropriate starting point, taking into account all aggravating factors, is an MPI of 19 years.
[49] To determine the appropriate MPI, I must have primary regard to the aggravating factors of your offending and to similar cases. Your offending engaged a number of aggravating factors:
(a)first, there was heightened planning and premeditation;
(b)second, there is the callousness in the disposal of Mr McGrath’s body;
(c)third, there is the concealing of evidence including the firearm;
(d)fourth, the murder involved the use of a lethal weapon;
(e)fifth, the offending involved what I would describe as a breach of trust, you took advantage of an unsuspecting and therefore vulnerable old friend; and
(f)finally, the significant harm that you have heard articulated this morning in the victim impact statements that you have caused to Mr McGrath’s family and to Ms Green.
[50] Put more generally, when I stand back and look at those aggravating factors, I think the Crown are right in their written submissions to describe this as an execution-style killing. Not surprisingly, no counsel have been able to find any case on all fours with your offending.
[51] In R v Yates, Downs J relevantly applied an MPI of 14 and a half years’ having found the case did not meet the threshold for a 17-year MPI.5 In that case, the aggravating features were described as:6
(a)callousness in shooting the deceased three times including twice in the back;
(b)the disposal of the deceased’s body (in a tarpaulin and buried in an unmarked grave where it was not discovered for six months);
(c)the concealing and destroying of evidence; and
(d)the threatening an acquaintance.
[52] In that case, the Judge was unable to identify a motive for the offending and was satisfied the offending was not premeditated.
[53] A 15-year MPI starting point was adopted in R v Lane, where the sentencing Judge described the murder as having the quality of an execution, albeit unplanned.7 The offender in that case had shot a passenger in his car with a pistol and at a range of about 60 cm and faced a murder charge and two charges of kidnapping.
[54] Ms Gray has referred to R v Swain.8 Mr Swain had repeatedly shot his victim, hid the body and sought to disguise his involvement in the offence. The body was never found. He too faced additional charges. A minimum period of 14 years was adopted, and the Court of Appeal found that a longer period could have been imposed. That offending did not involve planning or premeditation. Neither did it involve any breach of trust or vulnerability of the victim.
5 R v Yates [2018] NZHC 2600.
6 At [36].
7 R v Lane HC Whanganui CRI-2008-069-1389, 23 September 2009.
8 R v Swain [2015] NZHC 3241.
[55] Ms Gray has also referred to the case of R v Lyttle, a missing body case where the sentencing Judge was satisfied, in light of the jury’s guilty verdict, that Mr Lyttle had shot the deceased in the head with a .22 firearm.9 Mallon J found the killing was not premeditated, but rather a spur of the moment decision to kill. An MPI of 12 to 13 years was applied. That MPI starting point included an uplift of up to two years to reflect the disposal of the body.
[56] I have also had regard to cases that the Crown have advanced: Marong v R, Winders v R and Kaur v R,10 where s 104 has been triggered and is said by the Crown to provide useful comparisons with your offending in that each case engaged significant planning and premeditation. In those cases, MPI’s of 17 and 18 years were imposed.
[57] Mr Benbow, what stands your offending apart from those cases where a lower MPI was adopted is your level of planning and premeditation. I consider that to be the most significant aggravating factor in your offending. And, having regard to the cases that I have reviewed, I adopt a notional starting point MPI of 17 years.
Adjustment for personal circumstances
[58] As for personal circumstances, Ms Gray submits that an allowance should be made for your previous good character, the time you spent on EM bail and the difficulties that you face in prison.
[59] I have referred to your previous good character and I agree that, subject to the operation of s 104, your unblemished record and the references would justify a small allowance of up to six months. Similarly, an allowance of up to eight months, in my view, could be allowed to recognise that you were on EM bail, albeit not the most restrictive EM bail, for nearly two years.
9 R v Lyttle [2019] NZHC 3454.
10 Marong v R [2020] NZCA 179; Winders v R [2018] NZCA 277; Kaur v R [2017] NZCA 465.
[60] I acknowledge that you have been transferred away from Christchurch because of your former employment at Christchurch Men’s Prison. However, I am not persuaded that an allowance would be justified to reflect the difficulties for family members having to travel south to visit you.
Conclusion - notional MPI
[61] So, taking those matters into account, I would arrive at a notional MPI of just under 16 years.
Is s 104 engaged?
[62] The next question is whether s 104 is engaged. That is the question that has been the focus of the written and oral submissions made by counsel.
[63] The Crown submit that a 17-year MPI should be imposed because your offending involved “calculated or lengthy planning” and so engages s 104(1)(b) of the Sentencing Act. Ms Gray argues that s 104 is not engaged and she urges a 12-year MPI to be appropriate to reflect both your offence and your personal circumstances.
[64] As the Court of Appeal in Desai v R observed, “calculated or lengthy planning” requires the Court to be satisfied the defendant engaged in more than simply thinking in the abstract about killing a person.11 The Court of Appeal contemplated the formulation or taking of preparatory steps designed to facilitate or further the proposed murder. And as highlighted by Ms Gray, the Court of Appeal in Marong v R, with reference to s 104 criteria, found there must be “a clear margin above the extent to which such features are likely to ordinarily arise in the course of a murder”.12
[65] I accept that the planning must be present to a heightened degree, either because of the period of time over which it has taken place or the degree of thought that has gone into it. However, it need not be competent or sophisticated.13
11 Desai v R [2012] NZCA 534.
12 Marong v R, above n 10, at [28].
13 Winders v R, above n 10, at [68].
[66] A review of the cases where s 104(1)(b) has been considered as helpful in assessing whether the planning that I am satisfied you undertook meets the statutory criteria. In Marong, the Court of Appeal confirmed the murder engaged both calculated and lengthy planning. In the weeks and months leading up to that murder, Mr Marong had undertaken a diverse range of internet searches, including how to kidnap and kill a sex worker and how to then avoid detection. He had trailed another sex worker on a previous occasion. The murder was carried out in a manner that was consistent with the preparatory research.
[67] In Kaur v R, the appellant and her co-offender with whom she was having an affair embarked on a plan to kill her husband. The Court of Appeal agreed that the deliberate plan to follow the victim to a car park, the fact there were three forms discussed of how to carry out the murder were considered, and the multiple attempts to execute it, qualified as calculated or lengthy planning.
[68] In Winders v R, a case you have heard referenced this morning, the victim, Mr Taiaroa, was a traffic worker who had, a week prior to being murdered, been late in holding out a stop sign, causing Mr Winders to have a minor collision with another vehicle. In the High Court, the sentencing Judge found the planning involved was not lengthy, but he observed that the defendant had had over an hour, as he headed towards the scene of the murder, to think about what he was doing and stop. That he then carried through with the murder led the Judge to find the offending involved lengthy or calculated planning.14 On appeal, the Court of Appeal accepted the plan to carry out the murder was calculated because it had included Mr Winders determining where the deceased would be working on the day in question; that after he had collected his vehicle he had to return home to collect his rifle and that he then had to drive over 200 kilometres to carry out the murder. The Court also observed that the means of carrying out the murder at that particular location were carefully planned, as was an intended escape route and various means by which Mr Winders intended minimising the risk of his detection.
14 R v Winders [2016] NZHC 2964.
[69] In Winders v R, the Court referred to the case of R v Parrish15 where an appellant had been seen cleaning and operating the loading mechanism on his rifle in Kerikeri around lunchtime on the day of the murder. He then drove to his wife’s unit in Auckland, arriving around 6:25 pm. He entered the unit with his rifle and shot his wife at close range before driving to his brother’s house in another part of Auckland and confessing to the murder. The Court of Appeal confirmed the assessment of the trial Judge that those facts were sufficient to engage the “calculated planning” criterion under s 104(1)(b).
[70] Section 104(1)(b) was also triggered in R v Singh, where the defendant had armed himself with a knife and had a history of stalking-type behaviour directed at the victim.16 He had changed his social media profiles after she blocked him. The Judge was satisfied the defendant’s decision to intercept the victim as she walked home was a consequence of him tracking her movements on a previous occasion in considering the best location where he might find her alone. Johnstone J accepted the planning was not competent or sophisticated but met s 104(1)(b).17
[71] And finally, in a very recent case of R v Pukepuke, the defendant had entered a guilty plea to a charge of murder.18 Lang J was satisfied the offending involved calculated and lengthy planning because the defendant had acquired a co-defendant’s vehicle and a firearm before driving from Rotorua to Tauranga. Once in Tauranga, the defendant acquired the use of a second vehicle for the purpose of travelling to and from the deceased’s address. The Judge described those acts as evidencing a heightened degree of planning and premeditation and bearing similarities to the acts of the offender in Winders v R.
[72] Mr Benbow, as will have become apparent from my summary of the factual basis upon which I will determine your sentence, I am satisfied your offending does engage s 104(1)(b).
15 R v Parrish (2003) 21 CRNZ 571 (CA).
16 R v Singh [2023] NZHC 2040.
17 At [28].
18 R v Pukepuke [2023] NZHC 3700.
[73] Ms Gray challenges the Crown submission that your plan to kill Mr McGrath dated back to early May when you made the annihilate comment. I agree. I don’t consider that comment to be evidence of planning. Similarly, I agree that your presentation and the language you used when you saw Toni Green on 8 May is more reflective of your distressed mental health than any conscious planning. I agree with Ms Gray that, at that stage, you had not embarked on a plan to kill Mr McGrath. But the anger and distress that you then ventilated to Ms Green continued to simmer, and it was a little over a week later that it transitioned into a plan to kill Mr McGrath.
[74] Ms Gray suggests that your unannounced visit on 17 May was not part of any plan to kill but was rather mundane or quite normal, reflecting no more than an old friendship marked by the occasional dropping by to ask for a hand. In my view, that submission flies in the face of the evidence of Toni Green about your mood and your attitude towards Mr McGrath demonstrate just a week earlier. On 8 May, you were highly distressed, you were angry. You asked Toni Green “how could she do that”, “he’s my best mate”, “how could he do that”, and you made that comment that he’s now “shagging my ex-partner”.
[75] Toni Green was an impressive witness, and I am satisfied she described your presentation and utterances accurately. Consequently, I am satisfied that your visit to Mr McGrath on 17 May was far from mundane. Given the powerful evidence as to how you felt about Mr McGrath, it is inconceivable that your unannounced visit was socially motivated. Rather, it reflected the initiation of your plan to exact your anger on Mr McGrath.
[76] Ms Gray is quite right that the evidence of your second visit to Mr McGrath on 18 May relies on the hearsay evidence of Jo Green. But I am nevertheless satisfied that the 18 May visit and the dinner invitation took place. Again, I consider it to be in furtherance of your plan. You wanted to entice Mr McGrath to your property, either to test the waters or to implement your plan to kill.
[77] You deliberately embarked on a course of action to initiate contact with Mr McGrath and, more specifically, to get him to your home. I do not consider it to be coincidence you made three discrete efforts to reconnect with Mr McGrath in the days
leading to his disappearance. I similarly do not consider it to be simple coincidence that your home security system, that is your surveillance cameras, had been switched off at a time that coincides with your attempts to lure Mr McGrath to your home. Those two factors evidence the implementation of your plan to kill Mr McGrath.
[78] The third attempt to lure Mr McGrath to your property under false pretences was successful and, on that occasion, you were prepared and able to carry out the murder. Unlike the offenders in the cases of Winders v R, R v Parrish and R v Pukepuke, your offending did not require you to take steps to acquire a firearm and you did not need to travel any distance in order to carry out the murder. Rather, your arrangement for Mr McGrath to come to your house on the Monday morning was a premeditated ruse, taking advantage of his good nature.
[79] I am satisfied the jury’s guilty verdict reflects that you had, in the days prior to carrying out the murder, closely considered how you were going to kill Mr McGrath, how you were going to avoid leaving any forensic trace at your property, how you were going to dispose of the body, and how you were going to dispose of the firearm and its accessories. You had a site in mind, somewhere south of Tai Tapu. I consider the degree of planning and premeditation in your offending was higher than in those three cases that I have mentioned.
[80] Ms Gray says but you were unable to explain the whereabouts of your firearm and she says, well, that is inconsistent with a murder as calculated and premeditated as is suggested by the Crown. And she invites the Court to find that the fact the firearm is missing might equally indicate this was an unplanned and hasty decision to kill. I agree that your failure to advance a plausible explanation for the missing firearm might be seen as a flaw in your plan, but that your plan was incomplete or not wholly successful does not mean you did not engage in calculated and lengthy planning.
[81] This morning in her oral submissions Ms Gray has submitted that the extent to which the jury accepted the Crown theory, that your murder involved significant planning and premeditation, is not clear. She submits there are a number of pathways that the jury may have accepted that do not engage heightened planning. I disagree
with that submission. I consider your murder of Michael McGrath involved calculated planning over several days and satisfies the criteria of s 104(1)(b).
[82] From there, Mr Hawes submits that, because Mr McGrath’s body has not been located, the 17-year MPI should be uplifted to 19 years. He relies on the approach taken by Mallon J in R v Lyttle. But, significantly in my view, Mallon J was not persuaded the murder of Mr Hall in that case was premeditated. So, s 104 was not engaged in that case.
[83] In finding that your offending does trigger s 104 because of a heightened degree of premeditation and planning, I have found that your planning extended to the disposal of Mr McGrath’s body. Whilst I agree there is a strong element of callousness in your ongoing refusal to disclose the whereabouts of Michael McGrath, I agree with Ms Gray that, given the significance of the body disposal, to my view, as to the degree of planning involved in this murder, it would be double counting to then further uplift the MPI to reflect that factor.
[84] I consider s 104 is engaged and a minimum period of 17 years’ imprisonment must therefore be imposed unless that would be manifestly unjust.
Would an MPI of at least 17 years be manifestly unjust?
[85] In considering that question, the Court is obliged to give effect to the legislative policy behind s 104. The Court may not depart from the minimum MPI of 17 years unless its imposition would be manifestly unjust. The Court of Appeal in R v Williams made it clear that the 17-year minimum may only be departed from if the sentencing court concludes that the case falls outside the scope of the legislative policy.19 The Court of Appeal observed that Judges must guard against allowing discounts based on favourable subjective views of the case and described the discretion of Judges as limited in that respect.20
19 R v Williams, above n 2.
20 At [67].
[86]The Court said:21
[68] Beyond that, what level of disparity amounts to manifest injustice remains a matter of sound sentencing judgement that is not capable of precise determination. It may be helpful, however, to indicate that when the qualifying factor has only peripheral significance in the case the statutory minimum term may be manifestly unjust. Otherwise, where the culpability attaching to the offence is relatively low having regard to the range of cases caught by s 104, the circumstances of the offender may make the sentence manifestly unjust.
[87] But, more recently in Frost v R, with reference to the passages in R v Williams, the Court said this:22
[41] … it has been recognised by this Court that the policy behind the legislative provisions for murder mean the discounts for personal mitigating factors have played “a lesser role” in murder sentencing. This is because s 103(2) signals Parliament's intention that the seriousness of the offending is to be a sentencing court's focus when setting an MPI for murder.
(footnotes omitted)
[88] In Purutanga v R, the Court again confirmed that “an MPI is not adjusted to take account of the personal factors of a defendant as though it were the sentence.”23
[89] Mr Benbow, I have found that with deductions for previous good character and time spent on EM bail, an MPI in the range of 16 years was available. However, when I stand back, considering the legal principles I must apply, and when I consider whether this was one of those really bad cases of murder falling within the category of cases Parliament intended to capture within s 104, I am not persuaded that a 17 year MPI is manifestly unjust. As Mr Hawes submitted, this was an execution style murder. Further, the threshold of “manifestly unjust” is a high threshold and I do not consider the difference between a 16 year MPI and a 17 year MPI to give rise to a manifestly unjust outcome.
21 At [68].
22 Frost v R [2023] NZCA 294 at [41], citing R v Williams, above n 2.
23 Purutanga v R [2023] NZCA 442 at [28].
Sentence
[90]Mr Benbow, will you please stand.
[91] Mr Benbow, on the charge of murdering Michael McGrath you are sentenced to life imprisonment. I also impose a minimum period of imprisonment of 17 years.
[92]You may stand down.
...................................................
Eaton J
Solicitors:
Crown Solicitor’s Office, Christchurch
Copies to:
Kirsten Gray, Barrister, Christchurch Katherine Basire, Barrister, Christchurch Anselm Williams, Barrister, Christchurch Kristopher Bucher, Barrister, Christchurch