PENE AMENE TE AO KAPUA HURIWAKA SWEENEY (AKA BENJAMIN SWEENEY) Appellant
AND
THE KING Respondent
Hearing:
27 July 2023
Court:
Mallon, Moore, and Palmer JJ
Counsel:
N P Chisnall KC for Appellant M R L Davie for Respondent
Judgment:
4 September 2023 at 3 pm
JUDGMENT OF THE COURT
ALeave is granted to adduce further evidence.
BThe appeal is allowed. The sentence of two years and two months’ imprisonment is quashed and substituted with a sentence of one year and 11 months’ imprisonment.
Mr Benjamin Sweeney, the appellant, was found guilty of assault with intent to injure and assault with a weapon, and acquitted of manslaughter, arising from a brawl at a petrol station in Ōtorohanga in October 2021. He was sentenced by Downs J in the High Court on 9 May 2023 to two years and two months’ imprisonment.[1] Mr Sweeney appeals on three grounds. We consider it was open to the Judge not to provide a discount for Mr Sweeney’s expressions of remorse which were focussed on the death of one of Mr Sweeney’s opponents in the brawl, as opposed to being focussed on his offending. We consider that the law, applied to Mr Sweeney’s circumstances, means that there should have been a discount to his sentence for the interests of his two young children, and their effect on his rehabilitative prospects. However, we are satisfied that the interests of the children in this case do not tip the balance far enough to make home detention the least restrictive sentence that is appropriate in the circumstances of this serious violent offending. We allow the appeal and substitute the sentence with a sentence of one year and 11 months’ imprisonment.
What happened?
[1]R v Sweeney [2023] NZHC 1095. These offences are punishable by maximum penalties of three and five years’ imprisonment respectively: Crimes Act 1961, ss 193 and 202C(1).
In his sentencing remarks, the Judge outlined the offending of Mr Sweeney and of his cousin, Mr Frank Sweeney:
[3] On 2 October 2021, you, Benjamin Sweeney, you, Frank Sweeney, and a third man, stopped your car on the main road in Ōtorohanga outside the service station. It was about 6.15 in the evening. It was still light.
[4] Almost immediately, Anthony Bell and his two brothers, Ethan Tumai and Victor Tumai, pulled up behind your car. Anthony Bell and Ethan Tumai had been drinking.
[5] Both of you and the third man rushed the victims’ car as they were getting out. Benjamin Sweeney, you were initially holding a beer bottle.
[6] Sadly, everyone wanted to fight. I return to why shortly.
[7] Anthony Bell was initially holding a hammer. He dropped it and bent over. As he did so, you, Benjamin Sweeney, punched him to the head twice. Your blows were hard. They knocked Mr Bell to the…
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
AGLC
Sweeney v R [2023] NZCA 417
Case
[2023] NZCA 417
Decision Date
CaseChat Overview and Summary
Benjamin Sweeney appeals his sentence of two years and two months' imprisonment, imposed by Downs J in the High Court. Sweeney was convicted of assault with intent to injure and assault with a weapon, but acquitted of manslaughter. The Court of Appeal, comprising Mallon, Moore, and Palmer JJ, considered Sweeney's appeal on three grounds. Firstly, Sweeney argued that the High Court judge erred by not providing a discount for his expressions of remorse. The Court of Appeal considered Sweeney's statements of remorse were primarily oriented to his sympathy for the effect of the deceased's death on the deceased's whānau. Sweeney has not expressed remorse for the offences of which he was convicted. Accordingly, the Court of Appeal did not consider the Judge erred in declining to discount Sweeney's sentence for remorse. Secondly, Sweeney argued that the High Court judge erred by not providing a discount for the interests of his two young children and their effect on his rehabilitative prospects. The Court of Appeal found that the law as stated in Philip v R requires the court to take the welfare of the children into account as part of the personal circumstances which are relevant to sentencing Sweeney. The Court of Appeal found that Sweeney is clearly an important presence in his young children's lives and it is in their best interests to grow up in a familial environment. The Court of Appeal considered that a discount of 10 per cent was justified. Thirdly, Sweeney argued that the High Court judge erred by not substituting a sentence of home detention for imprisonment. The Court of Appeal found that Sweeney's offending entailed serious violence between two groups of men who did not know each other at a gas station. The Court of Appeal found that the interests of Sweeney's children do not tip the balance far enough to make home detention the least restrictive sentence that is appropriate in the circumstances of this serious violent offending. The Court of Appeal allowed the appeal and substituted the sentence with a sentence of one year and 11 months' imprisonment.