BENSON v NEW ZEALAND POLICE [2020] NZHC 1946

BENSON v NEW ZEALAND POLICE [2020] NZHC 1946 [5 August 2020]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2020-441-16[2020] NZHC 1946AHDAN BENSONvNEW ZEALAND POLICEHearing: 4 August 2020Appearances: S Jefferson for the AppellantF E Cleary for the RespondentJudgment: 5 August 2020JUDGMENT OF COOKE J[1] Mr Benson appeals against the sentence imposed by the District Courtfollowing the entry of guilty pleas to four charges of burglary,1 one charge ofintentional damage2 and one charge of theft.3 The appellant was sentenced to 25months' imprisonment and ordered to pay $4,531.20 in reparations.4[2] On appeal the appellant says that the sentencing Judge:(a) failed to provide appropriate discounts for remorse and rehabilitation;1 Crimes Act 1961, s 231; maximum penalty of 10 years' imprisonment.2 Section 269; maximum penalty of seven years' imprisonment.3 Sections 219 and 223; maximum penalty of one years' imprisonment.4 New Zealand Police v Benson [2020] NZDC 11862 [District Court judgment].(b) erred in only imposing a 15 per cent discount for the factors under s 27of the Sentencing Act 2002; and(c) applied a three-step analysis when factoring the guilty plea discountrather than a two-step analysis as adopted in the Court of Appeal'srecent decision in Moses v R (Moses).5[3] The appellant takes no issue with the starting point or uplifts for otheroffending and previous offending.Background[4] The first charge of burglary was on 2 November 2019 when Mr Benson was atthe Black Bridge Transfer Station in Haumoana. Using a large piece of metal, heattempted to force the door open. He could not get in and damaged the door, causing$718 worth of damage.[5] On the evening of 5 January 2020, Mr Benson was then at TamateaIntermediate School where he levered open a window. He climbed in and took 14 UEBoom 3 Speakers valued at $2700, five Endeavour HDMI chords and two HDMIcables.[6] Two days later, he was driven to the Eastern Institute of Technology (EIT)Napier campus. He entered the hospitality block, found a TV attached to the wall andremoved it. He left the building and placed the TV in the rear of the car before leaving.[7] Four days later, Mr Benson was at the EIT campus on Gloucester Street wherehe forced entry into a building and use a spade to break into a vending machine whichleft the machine inoperable.[8] On 14 January 2020, Mr Benson forced entry into the rear door of the PettigrewGreen Arena in Taradale, stealing a note and coin holder and damaging a vendingmachine, absconding with $600 cash.5 Moses v R [2020] NZCA 296 [Moses].[9] On 16 January 2020, Mr Benson was at the Napier Golf Club. He forced hisway into the building, took a box of Whittaker's chocolate bars before leaving. Hewas arrested later that day.District Court judgment[10] The District Court arrived at a starting point of 30 months' imprisonment forthe burglary charges and then included a six-month uplift for the breach of releaseconditions, criminal damage and theft, and four months for the previous offending.6This led to a total of 40 months' imprisonment.[11] The Judge then gave a discount of 15 per cent arising from personal factorsoutlined in a cultural report. The Judge said this led to 34 months' imprisonment,before deducting a further 25 per cent, leading to an end sentence of 25 months'imprisonment.7 The Judge noted they would not have granted leave to apply for homedetention due to the nature of the appellant's offending and of his previous offending.The Judge also cancelled the appellant's release conditions. The six-month sentencefor intentional damage and the two months' imprisonment for breach of releaseconditions is to run concurrently with the final sentence.8 Finally, the Judge orderedreparations totalling $4,531.20.Principles on appeal[12] This is a first appeal against sentence under s 244 of the Criminal ProcedureAct 2011. The Court must allow the appeal if there is an error in the sentence imposedand the Court is satisfied a different sentence should be imposed.9 A sentence appealis an appeal against a discretion and only if there is an error of principle should theappellate court re-exercise the discretion.10 The focus is on the final sentence andwhether that was in the available range, rather than the exact process by which it wasreached.116 District Court Judgment, above n 4, at [7].7 At [8].8 At [9].9 Criminal Procedure Act 2011, s 250.10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482; B v R [2011] NZCA 331 at [9]; andLawrence v R [2011] NZCA 272 at [11].11 Ripia v R [2011] NZCA 101 at [15].Discounts for remorse and rehabilitation[13] The appellant first submits that there should be a discount for remorse of atleast 10 per cent, citing the cultural report under s 27 as evidence of his remorse andhis attempt to undergo restorative justice to apologise to his victims. His counsel alsopoints to the letters he has written that state he is extremely sorry, which were notavailable to the District Court.[14] Additionally, the appellant submits that the District Court failed to addressMr Benson's commitment to rehabilitation address his underlying issues. Theappellant notes the s 27 report as evidence of the appellant seeking help and that, sinceturning 30 years of age, he has reached a point of realisation that "unless he changeshe will spend the rest of his life in prison". The appellant submits he is willing toengage with ACC counselling, Mental Health and Addiction Services and the DrugTreatment Programme in prison. This willingness to engage, the appellant says,should attract a discount of at least 10 per cent.[15] The respondent submits that the District Court did not have the letters ofremorse available, and it was not required to impose a discount over and above thatreflected in the full guilty plea discount. As to rehabilitation, the respondent submitsthat it agrees with the District Court's scepticism over the appellant's enthusiasm forrehabilitation. They note the District Court's observation:[4] You say that you are open to all forms of intervention to help you, anycourses or programmes. You have had opportunity in the past, complied wellat the beginning and then dropped off. You have got quite a history ofoffending unfortunately including quite a few previous convictions forburglary. You have had some engagement with the Mash Trust in the past andyou may be eligible for the drug treatment programme whilst in custody. [16] As the Court of Appeal has recently reiterated in Moses, remorse is a personalmitigating factor that may justify a separate discount from a guilty plea discount.12This requires more than the bare acceptance of responsibility but need not beextraordinary and courts will look for tangible evidence such as engagement inrestorative justice processes.12 Moses, above n 5, at [24].[17] There is evidence to show Mr Benson's remorsefulness, through the letterswritten to his victims and willingness to engage in restorative justice. As the DistrictCourt judgment records, there may be some scepticism about the effectiveness ofrehabilitation given Mr Benson's past history, but it is evident from the s 27 reportsome willingness has been expressed.[18] In some circumstances there may be reason to give an additional discount forremorse of between five and 10 per cent if such factors are not already reflectedadequately in other assessments. Here the District Court Judge gave a 15 per centdiscount for the personal factors revealed in the s 27 cultural report. I see no error forthe Judge failing to give an additional discount specifically for remorse or the potentialfor rehabilitation. Given the history of offending, such expression by itself may nothave been regarded as truly significant. The expressions of remorse have only beenexpanded upon on appeal. The impact on culpability arising for the reasons addressedin the cultural report were significant. It is not surprising that the Judge focused onthose when discounting for personal mitigating factors.[19] I do not accept that the Judge erred in failing to give an additional discount forthese factors.Discounts for s 27 factors[20] The appellant submits that the 15 per cent discount given in the District Courtwas inadequate. The appellant seeks a discount of at least 20 per cent, noting that theappellant's behaviour was characterised by systemic deprivation from poverty, sexualabuse, educational underachievement, drug and alcohol abuse and criminal offending.Counsel for the appellant in the District Court sought only a 15 per cent discount forthe s 27 report. The appellant has since changed his counsel.[21] Mr Benson's cultural background is New Zealand European/Pākehā, and thesystemic deprivation suffered is one that is not based on the colonisation of Māori. Sothe deprivation does not result from "loss of land, language, culture, rangatiratanga,mana and dignity" of Māori which are matters that Whata J held, in Solicitor-Generalv Heta, "may be regarded in a proper case to have impaired choice and diminishedmoral culpability".13 The respondent accepts discounts were available, but submitsthat the discount was generous in comparison to R v Allen, R v Rakuraku, R v Sanders,R v Waitokia and R v Rudolph.14[22] In all but one of the cases cited, the offenders were Māori. There are also caseswhere minority-ethnic people have been given discounts based on s 27 factors.15 Butthe particular culture the defendant belongs to is not the key point. The question stillremains whether there has been systemic poverty resulting from loss of land, language,culture, rangatiratanga, mana and dignity.[23] In relation to Māori offenders the Courts are becoming increasingly familiarwith the impacts of colonisation in New Zealand, and how that has ultimately affectedsubsequent generations appearing before the courts. This has now become apparentas a matter of institutional knowledge.16 But that does not mean that those who comefrom other cultural backgrounds cannot demonstrate similar effects. The questionremains an evidential one.[24] Here Mr Benson was shown to have faced a traumatic childhood, and sufferedsystemic deprivation. The fact that he is of a Pākehā background is not disqualifying.What matters is the effects of cultural deprivation on culpability. As the report writersaid he "has suffered and experienced the same systematic deprivation anddisadvantages as those persons in the case law ". He has similarly lost a sense ofcommunity identity and guiding values as a consequence of systemic deprivation. Inmy view a discount for this factor was available.[25] I do not accept, however, that the 15 per cent discount was inadequate.Ultimately there is no reason why Mr Benson's circumstances can be said to have notbeen appropriately addressed by the discount the Judge gave. As the Crown submits,comparison with other cases does not suggest that the factor has been given less than13 Solicitor-General v Heta [2018] NZHC 2453; cited with approval by the Court of Appeal in Zhangv R [2019] NZCA 507 at [159].14 R v Allen [2020] NZHC 1796; R v Rakuraku [2014] NZHC 3270; R v Sanders [2019] NZHC 164;R v Waitokia [2018] NZHC 2146; and R v Rudolph [2019] NZHC 1050.15 R v Vea [2019] NZHC 1587; R v Tae [2020] NZHC 1119; and R v Larson [2020] NZHC 237.16 See Moana Jackson He Whaipaanga Hou: The Maori and the Criminal Justice System: A NewPerspective (Department of Justice, February 1987).an appropriate weight. Mr Benson has not been able to demonstrate a comparablecase showing a greater discount is usually given in his circumstances.[26] Accordingly I dismiss this ground of appeal.The two-step analysis as stated in Moses[27] The appellant finally submits that the recalculation of the sentence based on atwo-step analysis as outlined in Moses would result in an end sentence of 24 months.17[28] Whilst the Court of Appeal has adjusted the way in which discounts are to beapproached in Moses, it is important to recognise that sentencing Judges should alwayshave kept the end sentence in mind when applying either a three-step, or two-stepprocess. It should not be assumed that the ultimate end sentence has become longeras a consequence of applying a particular approach. I am not prepared to assume thatan error has been made here simply because a three-step, rather than two-step approachwas applied. The question remains whether the end sentence was manifestlyexcessive.[29] In Moses the Court of Appeal states:[46] A two-step methodology should be used:(a) the first step, following Taueki, calculates the adjusted startingpoint, incorporating aggravating and mitigating features ofthe offence;(b) the second step incorporates all aggravating and mitigatingfactors personal to the offender, together with any guilty pleadiscount, which should be calculated as a percentage of theadjusted starting point.[30] The District Court here arrived at a starting point of 30 months. The Judgethen added six months for a breach of release conditions, criminal damage and theft.A further four months were added for Mr Benson's previous convictions. These weretherefore treated as the first step, which become the "adjusted starting point". The17 Moses v R, above n 5.discount for s 27 factors was then applied as a percentage of this 40-month "adjustedstarting point".[31] Mr Jefferson submits that the 25 per cent deduction for the guilty plea was onlydeducted after the deduction for mitigating circumstances (40 months, less 15 per centbeing 34 months, with the 25 per cent discount then resulting in 25.5 months, roundeddown to 25 months). He says it should have been deducted from the 40 month startingpoint (40 months, less 15 per cent for mitigation and 25 per cent for guilty plea, being24 months).[32] It is not quite that straightforward, however. If the first and second steps arestrictly observed in accordance with Moses, the four months added for Mr Benson'sprevious convictions might arguably be treated as an aggravating factor personal tothe offender, and therefore addressed only at the second step. The six-month discountalso conflates factors, which are personal (breach of release conditions) and factorsrelevant to the offending (criminal damage and theft). They could have been added tothe first step for ease of calculation in this case.[33] Whatever approach is applied they lead to a very similar ultimate sentence.This illustrates the point made above — what ultimately matters is the end sentence.The complications involved in deciding whether factors are relevant to the offence, orthe offender, should not detract from that point. Here the particular approach adopteddoes not evidence the 25-month sentence was manifestly excessive. It is true that onecan make adjustments to the calculations as a consequence of the change introducedby Moses and arrive at a sentence of approximately 24 months. At that step the precisecalculations can be said to be important, as once the sentence falls to 24 months theshort-term sentencing rules become engaged. But that would also have been apparentto the District Court Judge, who specifically noted that leave to apply for homedetention would not have been granted. It is important that sentencing questions donot become focused on matters of formulas and arithmetic. The fact that the sentencemight be thought to come closer to 24 months does not means the sentence wasmanifestly excessive.1818 See Kennedy v Police [2019] NZHC 2644 and Annalingam v Police [2017] NZHC 2803.[34] For all of the above reasons the appeal is dismissed.Cooke JSolicitors:S Jefferson, Napier for the AppellantCrown Solicitors, Napier for the Respondent