R v Bennett HC Auckland CRI 2009-292-2198

[2010] NZHC 1213

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-292-002198

THE QUEEN

v

TONIA ASHLEIGH BENNETT

Charges:         Murder x1

Arson x2

Plea:               Guilty

Appearances: K J Glubb and S A Mandeno for Crown

C H Bennett for Prisoner

Judgment:      23 July 2010

Murder – life imprisonment.  Minimum non-parole period of 11 and a half years.

Arson x2- six years’ imprisonment concurrent

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            C H Bennett, Auckland

G Gotlieb, Auckland [Note: [2]].

R V BENNETT HC AK CRI-2009-292-002198 [23 July 2010]

[1]      Toni Ashleigh Bennett, you are for sentence this morning having pleaded guilty to one count of murder and two counts of arson.  You have previously had name suppression to this point but your counsel has accepted that the suppression cannot be maintained any further.   That was a proper and realistic concession.   I confirm that name suppression is to lapse.

[2]      Your co-offender currently has name suppression.   He is not represented today.   I direct that unless an application is made to the Court within 14 days for continuation of his name suppression, the suppression of his name will also lapse. A copy of these notes are to go to his counsel.

[3]      The facts of your offending are that at about 1.00 a.m. in the morning of 20

January last  year  you  and  a casual  acquaintance,  your co-offender,  were at  the address you lived at in Wellington Street, Pukekohe.  This was a supervised house approved by the Children and Young Family Services.  At the time you were in the care of the Children and Young Family Services pursuant to a s 101 custody order.

[4]      During the course of the evening you had been drinking and had taken some pills, probably Ecstasy.  For some reason you were angry with an ex-boyfriend Brad Chapman.  He lived across the street.  You still had one of his t-shirts.  You decided, because of your anger at him, to set fire to it.  You and your co-offender went across the road and put the t-shirt against the front door of the Chapman home.   You covered it in alcohol from a bottle of Absinthe, an 85 per cent alcohol based spirit and set fire to it on the front doorstep.  The t-shirt burnt for a time but then burnt itself out.

[5]      You then made the tragic decision to set fire to a second item of clothing belonging to Mr Chapman, which you had, a sweatshirt.   While your co-offender acted as a lookout at the bottom of the drive, you again returned to the house, but this time you entered the home itself, using a key to the open front door.   Because of your relationship with the family you knew where to find the key.  When you were inside the front entrance area you soaked the sweatshirt in more of the alcohol and placed it at the bottom of the internal stairwell.  You then set fire to it and left the house closing the front door behind you.  The internal stairwell was the only means

to access the upstairs part of the home and the only means for anyone upstairs to come down and get out of the house.  At the time you were there and set fire to the sweatshirt you could hear the television on in an upper room.  You knew someone was present.  As it turned out, the deceased Mrs Chapman was there.  She was on her own that night as her sons were sleeping at their father’s place.

[6]      You and your associate then went back to your address and talked about what you had done.   Your caregiver overheard the conversation and reported it to the police.  But by then the fire you had set had taken hold of the house, cutting off any prospect of the deceased’s escape from upstairs.  The photographs before the Court show that the fire was a savage and destructive fire.  The deceased succumbed to the fire in her bedroom.  She seems to have been overcome by smoke and was unable to escape.

[7]      When you were initially spoken to by the police you sought to blame your associate for the second fire.   But you did accept that when you approached the house on the second occasion you heard the television on, and that you knew the deceased was at home.  You had in fact earlier told your associate that the deceased slept with the television on all the time.   Your associate pleaded guilty to manslaughter and was sentenced to two years’ imprisonment with leave to apply for home detention.   He was given a significant discount on the sentence imposed on him because he agreed to give evidence against you at your trial.  In the event that was unnecessary because about three weeks prior to your scheduled trial you pleaded guilty.

[8]      There are a number of purposes and principles that the Court is directed to take into account in sentencing someone in your position.  First, there is the need to hold you accountable for the harm you have done to the victims of this case and to promote in you a sense of responsibility for that harm.  Your stupid and alcohol and possibly drug fuelled actions that night have affected the lives of many people who are left.  You have taken a mother, partner and daughter from the people that loved her.

[9]      The sentence must also denounce your conduct and deter you and others from similar conduct.  There is also a need to consider the protection of the community which requires the Court to consider your rehabilitation on your ultimate release back to the community.

[10]     The Court must also take into account the gravity of your offending and your level of culpability in the circumstances of the case, as well as consider sentences for similar offending.  In this case also, as noted, the offending has had a terrible effect on the victims, the deceased’s family and loved ones.  You have heard of that effect this morning.

[11]     Ms Bennett, as you have pleaded guilty to murder, I must impose a sentence of imprisonment for life unless that would be manifestly unjust.  It is not suggested that that would be the case, so the next task for the Court is to fix the minimum period of imprisonment which you must serve during that life sentence.   The minimum period may not be less than 10 years.

[12]     The Crown argues in your case for an end minimum non-parole period of between 12 and 13 years.  Ms Bennet has argued on your behalf that the minimum period of 10 years itself is sufficient in all the circumstances.

[13]     In this case s 104 of the Sentencing Act is engaged.  Under that section the Court is directed to make an order imposing a minimum period of at least 17 years if certain circumstances exist unless satisfied it would be manifestly unjust to do so. Two of those circumstances are if the murder involved the unlawful entry into a dwelling and if the murder was committed in the course of another serious offence. Both of those circumstances apply in this case.  The murder followed your unlawful entry into the deceased’s home and was committed in the course of another serious offence, namely burglary with the intention of committing arson.

[14]     Mr Glubb has also submitted that the victim in this case was vulnerable, which is another factor.  The victim was at home in the early hours of the morning and to that extent was vulnerable to what ultimately happened in this case, but in my judgment  the  principal  aggravating  factors  that  are  engaged  by  s 104  are  the

unlawful entry and the fact the offending was committed in the course of another serious offence.

[15]     In R v Williams[1]  the Court of Appeal identified the process this Court must follow when the circumstances under s 104 exist.   The Court is first directed to consider the degree of your culpability in relation to the murder generally and, in doing so, as well as the aggravating features I have referred to,  must take into account any other applicable aggravating features of the offending.   The Court is required  to  then  balance  against  that  and  take  into  account  relevant  mitigating factors.

[1] R v Williams [2005] 2 NZLR 506.

[16]     The Court must then decide what minimum term would be justified in all the circumstances of the case, including your personal circumstances.  A minimum term of 17 years would be manifestly unjust where the Court decides as a matter of overall impression the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term.

[17]     It is helpful to consider comparisons with other relevant sentences.  Counsel have referred to a number of such cases and I have had the opportunity to read and consider those cases.   The cases are:   R v Clayton;[2]     R v Mills;[3]     R v Kahn;[4]

[2] R v Clayton HC Wellington CRI-2006-054-000557, 22 June 2007. 

[3] R v Mills HC Rotorua CRI-2008-063-002260, 6 August 2009.

[4] R v Khan HC Auckland, T2004-092-003097, 29 October 2004.

R v Nightingale;[5]   R v Tuporo;[6]   R v Falaniko;[7]   and R v Parrish.[8]   The most helpful

case by way of comparison is the case of Clayton.  Ms Clayton decided to firebomb the house in which people that she believed her partner was having a relationship with was living.  She engaged in a degree of planning and went and bought material to make firebombs.  She and her associates then threw Molotov cocktails through the window of the home.  Five people were in the house at the time.  Four escaped but one was unable to and died.  The premeditation and planning in Clayton was more extensive than in  your case but that is balanced by your direct invasion of the

deceased’s home.   Also I observe that although Ms Bennett has categorised your

actions as impulsive, you did return on a second occasion after the first fire had burnt out.   In Clayton the sentencing Judge considered that a 17 year minimum period would be manifestly unjust.  He fixed a minimum period of 13 years.  As noted the Clayton case has certain similarities with yours.

[5] R v Nightingale HC Rotorua CRI-2007-070-006332, 6 May 2009.

[6] R v Tuporo [2008] NZCA 22.

[7] R v Falaniko HC Auckland CRI-2005-092-001194, 16 February 2007.

[8] R v Parrish (2003) 21 CRNZ 571.

[18]     By contrast the minimum period of 17 years was imposed in the cases of Mills and Khan.   In both of those cases, however, the prisoner had deliberately poured petrol or inflammable liquid over the deceased and then deliberately set fire to them.

[19]     I turn to consider your personal circumstances, which are a major factor in this case.  You are now 18 years old but at the time of the offending you were still only  16.    Your  childhood  was  marred  by  violence  and  drugs.    Your  parents constantly separated and reconciled.  By the age of 10 you had attended 10 different schools.  Your parents separated for the last time when you were 12.  You moved to Australia with your father where it is alleged you were abused by one of his friends. You then went back and lived with your mother for a short time.  Your mother was unable to care for you.  You then lived on the streets and you associated with gang members.  You came to the attention of the Child, Youth and Family Services.  You have used drugs for a number of years.  One of the supervisors who has had your care describes you as at high risk with complex needs and displaying challenging behaviour. You have a lack of trust in others.   It is acknowledged that you are difficult to manage.

[20]     To assist the Court your counsel has obtained a psychiatric report.   That report confirms a clear pattern of disordered behaviour from your very early years compounded  over  time  by  attention  deficit  hyperactivity disorder,  dysfunctional parenting, victimisation and abuse.   You present with an ongoing degree of hyperactivity and emergent cluster B personality disorder, including clear anti-social and borderline features with histrionic and narcissistic features.  You have periods of depression as a function of your disordered personality and the consequences of poor lifestyle choices.  You have shown intermittent self-harming behaviour.  You lack functional coping skills, distress and frustration tolerance and have poor emotional regulation.    You  have  poor  or  limited  social  support  and  a  poor  and  unstable

educational or occupational history with no evidence of relationship stability.  Drugs and alcohol have played a major part in your dysfunctional and offending behaviour. You suffer from a significant dysfunctional personality disorder.  One positive factor the psychiatrist identified is your intellectual functioning.   Despite your lack of formal education or attendance at formal education you are an intelligent young woman.  The psychiatrist notes that there is potential for improvement as you mature and attend educational and therapy programmes through the course of your prison sentence.   The risks of your reoffending will be significantly lowered if, whilst in prison, you engage fully with appropriate therapy and rehabilitation to address the failures that you suffer from.  That will be a matter for you.

[21]     Finally, the probation officer who interviewed you, considered you to be someone who attempts to present as tough and streetwise but underneath you are a frightened young woman.

[22]     I  accept  that  the  matters  I have  referred  to,  particularly  your  borderline personality disorder and depression have, in this case, led you to commit acts which it is otherwise difficult to explain.  I accept that as the psychiatrist has said you are fit to plead and instruct counsel, but nevertheless your mental state is disturbed to such a degree that it must reduce the culpability of your actions in this case.

[23]     Having regard to the circumstances of your offending, which is serious, but also taking account of the mitigating factors relevant to you personally, I am led to conclude that a minimum sentence of 13 years would be appropriate in your case before taking account of the guilty plea.  I am satisfied that in the circumstances the imposition of a minimum 17 year period would be manifestly unjust.  The entry into the home and the murder while committing another offence bring the case within s 104 but do not elevate the offending to the same extent as a number of the other cases where the 17 year minimum period has been imposed.  Your offending on the night was stupid.  It had a tragic result but it was committed in the context of your very troubled personal circumstances.

[24]     The other factor that I can take into account on your behalf is the guilty plea you have entered.  Although the plea was only entered three weeks prior to trial it is

appropriate to provide further reduction for that.  The guilty plea you have entered was  a  tangible  recognition  by  you  of  your  responsibility  for  the  death  of  the deceased.  It also spared the deceased’s family and loved ones the ordeal of a trial and the evidence that would have been adduced during the course of that trial.  A further reduction of one year and a half years is appropriate for that.

[25]     Ms Bennett, please stand.  Tonia Ashleigh Bennett, on the charge of murder, you are convicted and sentenced to life imprisonment.  You are to serve a minimum non-parole period of 11 and a half years.   On the two counts of arson you are convicted and sentenced to six years’ imprisonment in each case concurrent.  Stand

down.

Venning J