MICHAEL BENNETT v R [2022] NZCA 575

MICHAEL BENNETT v R [2022] NZCA 575 [24 November 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.[ ]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA418/2021[2022] NZCA 575BETWEEN MICHAEL BENNETTAppellantAND THE KINGRespondentHearing: 31 October 2022Court: Miller, Muir and Gendall JJCounsel: G R Anson for AppellantC A Brook for RespondentJudgment: 24 November 2022 at 2.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Muir J)Introduction[1] Mr Michael Bennett appeals a sentence of seven years and 10 months'imprisonment,1 imposed following guilty pleas to one charge of indecent assault on ayoung person;2 eight charges of sexual connection with a young person;3 four chargesof dealing with a person under 18 for the purposes of sexual exploitation;4 one chargeof facilitating commercial sexual services with a person under 18;5 and seven chargesof arranging commercial sexual services with a person under 18.6 He says that thesentence imposed by Venning J was manifestly excessive. His sole appeal point is thatthe starting point for the sexual exploitation offences,7 identified as the lead offending,was too high.Background[2] In June 2015, Mr Bennett was sentenced to four years and nine months'imprisonment for the rape of his then partner. Shortly after his sentence expired andhis parole conditions lapsed, he befriended the first victim (VS) and moved in with herfamily. She was, at the time, 15 years old. Mr Bennett was aged 35.[3] VS's parents believed that Mr Bennett was assisting their daughter to navigatevarious emotional issues and permitted him to sleep in her room. They understood hewould be sleeping on the floor. However, he was in fact sleeping in her bed and havingsex with her multiple times per day. This included vaginal intercourse, analintercourse and frequent oral sex. They also had sex in various motor vehicles, in acaravan on an associate's property, and at a school attended by VS's brothers. All suchsexual activity was consensual, albeit the product of what Venning J considered to bea gross abuse of trust. The activity continued over a two-month period frommid-December 2019 to mid-February 2020.1 R v B [2021] NZHC 1405 [Sentencing notes].2 Crimes Act 1961, s 134(3).3 Section 134(1).4 Section 98AA(1)(a)(i).5 Prostitution Reform Act 2003, s 20.6 Section 22(1).7 By this we mean the offending under s 98AA(1)(a)(i) of the Crimes Act and the ProstitutionReform Act 2003.[4] Towards the end of that period, Mr Bennett also had sex with VS's 14-year-oldfemale friend (HP), on a single occasion while she was visiting VS. The offendingcomprised oral sex, digital penetration and sexual intercourse. HP said that she didnot want to have sex with Mr Bennett but that he was insistent.[5] The sexual exploitation offending related to VS and occurred between31 January and 14 February 2020. Mr Bennett told VS that he wanted her to have sexwith one hundred men and then go back to the ones she liked. He advertised her sexualservices on a website and made arrangements with nine different men to have sex withher in exchange for a typical fee of $150. Not all of these arrangements wereconsummated. VS had sexual intercourse with four men who responded to theadvertisement (three of whom also received oral sex) and oral sex with a fifth.Mr Bennett filmed the sex acts on at least three occasions.[6] The offending came to light after a complaint by HP, which was madeimmediately after the events described in [4] above. The effect on the victims hasbeen profound. Both have engaged in self-harming behaviours and have attemptedsuicide.The sentencing decision.[7] Venning J adopted a starting point of eight years' imprisonment for the sexualexploitation offending and four years and three months' imprisonment for the sexualconnection offending.8 Combined and adjusted for totality, he adopted an overallstarting point of 10 years and six months' imprisonment.9[8] In respect of the sexual exploitation offending, he said that the harm to VScould not be overstated, particularly as she was under the legal age of consent.10He considered her particularly vulnerable and the offending cynical and abusive.11In adopting an eight-year starting point for that offending, the Judge referenced this8 Sentencing notes, above n 1, at [33] and [35].9 At [35].10 At [31].11 At [32].Court's decision in Kelly v R,12 the High Court decision in R v Hore13 and the SexualOffences Definitive Guideline issued by the Sentencing Council for England andWales (the SC Guideline).14[9] In respect of the sexual connection offending, the starting point was fixed byreference to the significant disparity of ages between the victims and the offender, thebreach of trust and the abusive nature of the offending.15[10] The Judge declined to uplift his adjusted overall starting point on account ofMr Bennett's prior rape conviction, given the fact that the index offending constituteda second strike under the Sentencing Act 2002,16 with the result that Mr Bennett wouldhave to serve his new sentence without parole.17[11] The Judge then discounted the adjusted starting point by 17 and a half per centon account of Mr Bennett's relatively late guilty pleas and seven and a half per centon account of personal circumstances described in a s 27 report.18[12] The result was an end sentence of seven years and 10 months' imprisonment.19The Judge noted that if the appellant had not been required to serve the sentencewithout parole, he would have imposed a minimum period of imprisonment oftwo-thirds (five years and three months)20 being the statutory maximum available tohim.The appellant's case[13] Mr Anson, counsel for the appellant, places significant emphasis on thedecision in Kelly v R in which the High Court's starting point of four years for theprostitution of a 14-year-old victim by her 19-year-old female friend, Ms Kelly, was12 At [33], referring to Kelly v R [2019] NZCA 75.13 At [33], referring to R v Hore [2012] NZHC 1575.14 At [33], referring to Sentencing Council for England and Wales Sexual Offences DefinitiveGuideline (2013) [SC Guideline].15 At [35].16 Section 86C (now repealed).17 Sentencing notes, above n 1, at [36].18 At [37]–[41].19 At [41].20 At [43].upheld on appeal.21 He submits that, overall, Mr Bennett's exploitation was equivalentto that of Ms Kelly and that the same four-year starting point should therefore havebeen adopted.[14] He says that Venning J was wrong to regard Mr Bennett's "earlier and ongoingabuse"22 as an aggravating feature of the sexual exploitation offending, because hesays such abuse resulted in an uplift of four years and three months and is otherwisedouble-counted.[15] He further submits that the High Court erred in identifying the offending ascategory one band A under the SC Guideline.23 He says that because category twoapplies where "Factor(s) in Category 1 not present", more than one and possibly all ofthe Category 1 factors must be present before that categorisation applies.[16] In addition, he says that band A cases should be reserved for the higher end ofexploitation and suggests a classification not dissimilar to the "leading", "significant"and "lesser" roles identified by this Court in Zhang v R.24 He submits that of theband A criteria, only breach of trust is present, and this is inherent in the sexualexploitation of any young person.[17] From a starting point of four years, Mr Anson submits that an uplift of one yearwas sufficient in respect of the sexual connection offending because this would beproportionate to the starting point for the more serious s 98AA Crimes Act 1961charges and would maintain better parity with the sentences imposed on those menwho had sex with VS in response to the advertisement placed by Mr Bennett.[18] From that combined nominal starting point of five years, Mr Anson submitsthat the appellant should receive the same totality adjustment (14 per cent) recognisedby the sentencing Judge, together with the same 25 per cent overall discounts.He therefore contends for a final sentence in the order of three years.21 Kelly v R, above n 12.22 Sentencing notes, above n 1, at [31]23 Under the SC Guideline, categorisation focuses on harm and band on culpability. The relevanttable is attached as Appendix A.24 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [126].The Crown's case[19] For the Crown, Ms Brook submits that this Court's focus must be on whetherthe final sentence was manifestly excessive and suggests that because the sentencingJudge took the sexual exploitation offending as the lead charge, he may, in fact, haveunderstated the seriousness of the sexual connection offending. Referring to thisCourt's decision in R v Hawken,25 she emphasises the extent of the breach of trust andsays that the "sheer frequency" of Mr Bennett's offending makes it a very seriousexample of its kind, submitting that the sexual connection offending could have itselfjustified a six-year starting point.[20] In respect of the sexual exploitation offending, she submits that Kelly v R wasa much less serious case on account of the small age difference between the victimand Ms Kelly. Nor was there was any equivalent breach of trust.[21] She submits that Mr Bennett's offending fell comfortably within category oneband A of the SC Guideline and that the fact the maximum penalty under theProstitution Reform Act 2003 is only seven years imprisonment is irrelevant other thanin identifying of the appropriate concurrent sentences on those charges. She alsosubmits that the starting point could well have been further uplifted by 12 months forthe offending against HP.[22] In the result, she says that an overall starting point as high as 14 to 15 yearsimprisonment (before any allowance for totality and the fact that the sentence wouldbe served without parole) could have been justified and that Venning J's adjustedstarting point of 10 years and 6 months imprisonment is "unimpeachable".Discussion[23] The significance of Kelly lies in this Court's acceptance that the SC Guidelinesupplies a useful comparator when sentencing offenders under s 98AA.26 It was not aguideline judgment. It established only that the starting point used by the sentencingJudge in that case was clearly within range.25 Hawken v R [2019] NZCA 450.26 Kelly v R, above n 12, at [35]–[36].[24] However, we respond to counsel's comparison with the circumstances of thatcase. We are not persuaded that the sexual exploitation offending in this case wasequivalent to that in Kelly. First, that case involved a single representative chargerelating to four transactions with the same man over a six-week period.27 In the presentcase, there were 12 arrangements with nine different men, resulting in VS havingunprotected intercourse with four different men and performing oral sex on a fifth.Secondly, the age differential in Kelly was barely five years.28 In this case it is 20.Thirdly, while the prospect of filming was raised by Ms Kelly, it was unclear whetherthat occurred.29 Mr Bennett filmed the sex acts on at least three occasions, making hisoffending more degrading and controlling. Fourthly, there was no evidence ofMr Bennett sharing earnings from VS's prostitution, as Ms Kelly did with her victim.30Fifthly, and perhaps most significantly, Kelly did not involve the gross breach of trustassociated with Mr Bennett's offending. The complainant in Kelly had simply movedinto the defendant's flat. By contrast, Mr Bennett was entrusted with assisting atroubled teenager — the extent of that trust evidenced by parental permission let himsleep in her bedroom. That trust was abused at multiple levels but especially so in thecontext of the sexual exploitation offending. Even if, as Mr Anson suggests, someelement of breach of trust will typically feature in sexual exploitation offending, thiswas a serious case of its kind.[25] In summary, we agree with Venning J's description of the offending as "cynicaland abusive", whereby the victim was exploited for commercial gain and her bodytreated as "a commodity to be traded or sold by [Mr Bennett] and at [his] direction andfor [his] pleasure".31[26] We accept Mr Anson's submission that the sexual connection offending couldnot, to the extent it was subject to a discrete uplift, be considered an aggravatingfeature of the sexual exploitation offending without the risk of double-counting but wedo not consider Venning J did so. All that he observed was that VS was particularlyvulnerable to commercial exploitation because of Mr Bennett's earlier and ongoing27 At [6].28 At [4].29 At [7] and [13].30 At [6].31 Sentencing notes, above n 1, at [32].abuse of her. In any event, the question is not how the Judge constructed the sentencebut whether the end result was manifestly excessive.[27] We do not accept Mr Anson's point that the smaller age gap in Kelly wasappropriately captured in the youth discount Ms Kelly received and that it is thereforeirrelevant for comparative purposes. It cannot be assumed, as Mr Anson suggests, thatthe same starting point would have been adopted for a very much older offender.Starting point and youth discount are two conceptually independent issues.[28] In respect of the SC Guideline, this offending was, in our view, appropriatelyidentified as falling within category one. There were at least two category onequalifying criteria — the victim was involved in penetrative sexual activity and thiswas unprotected and therefore "unsafe", exposing VS to the risk of sexuallytransmitted disease. We reject the construction of the SC Guideline for whichMr Anson contends. The existence of a single category one criterion in respect of anygiven offending is enough to place it within that category.[29] In terms of culpability, Mr Bennett's gross breach of trust is the decisivefeature. We accept also that there were elements of grooming associated with theoffending, by virtue of the attachments VS would have inevitably developed over theearlier period of abuse. Category one band A offending for victims 13 to 15 years ofage invites a starting point of eight years' custody under the SC Guideline.32[30] In terms of the uplift for the sexual connection charges, we agree that thefour years and three months nominally adopted by the Judge was well within range,having regard to this Court's decisions in R v H,33 R v Johnson34 and Hawken v R.3532 SC Guideline, above n 14, at 91.33 R v H (CA94/08) [2008] NZCA 237 in which this Court observed at [17] that s 7 of the CrimesAmendment Act 2005, which increased the maximum sentence under s 134 of the Crimes Act1961 from seven to 10 years' imprisonment, was part of a "prophylactic regime designed toincrease protection for young persons in positions of vulnerability".34 R v Johnson [2010] NZCA 168 in which this Court noted at [21]–[22] that a starting point of threeyears and nine months' imprisonment for sexual offending over a three-month period where therewas a 21 year age discrepancy, adverse effects on the victim and some element of targetingbehaviour was "the bottom of the range".35 Hawken v R, above n 25, where an end sentence of three and years nine months' imprisonment(including an uplift of 3 months for previous offending) was upheld on a single representativecharge involving a troubled 15-year-old male and 32-year-old female who had providedaccommodation to the complainant.The frequency of the offending, albeit over a two-month period only, coupled with thelarge age difference between victim and appellant, marked this out as seriousoffending of its type. The offending against 14-year-old HP, ostensibly against herwill, was also appropriately taken into account.[31] In any other case, the totality adjusted starting point would have then beenuplifted by at least nine months on account of the appellant's history of sexualoffending. The only reason this did not occur was because Mr Bennett was beingsentenced on a second-strike offence. Although Mr Anson does not suggest that theoperation of the former s 86C of the Sentencing Act would, in this case, engage s 9 ofthe New Zealand Bill of Rights Act 1990, we record our acceptance of the Crown'ssubmission that it is not seriously arguable that service of the full sentence withoutparole would breach s 9 of the Act. Indeed, as the Crown says, given this offendingfollowed so closely after the parole conditions on a previous sentence for rape hadelapsed, we consider it unlikely the appellant would have been granted parole in anyevent.[32] Finally, we note that no issue is taken with Venning J's totality adjustment orhis discounts for guilty plea or personal circumstances. Nor could there be.[33] The sentence is not manifestly excessive. We accept Ms Brook's submissionthat it might have been longer.Result[34] The sentence appeal is dismissed.[35] We note the appellant's name remains subject to interim suppression pursuantto the order of Venning J, dated 15 June 2021.Solicitors:Crown Law Office, Wellington for RespondentAPPENDIX AHarmCategory 1 • Victims involved in penetrative sexual activity• Abduction/detention• Violence or threats of violence• Sustained and systematic psychological abuse• Victim(s) participated in unsafe/degrading sexualactivity beyond that which is inherent in the offence• Victim(s) passed around by the offender to other"customers" and/or moved to other brothelsCategory 2 Factor(s) in category 1 not presentCulpabilityA • Directing or organising sexual exploitation of achild on significant commercial basis• Expectation of significant financial or other gain• Abuse of trust• Exploitation of victim(s) known to be trafficked• Significant involvement in limiting the freedom ofthe victim(s)• Grooming of a victim for sexual exploitationincluding through cultivation of a dependency ondrugs or alcoholB • Close involvement with inciting, controlling,arranging or facilitating sexual exploitation of achild (where offender's involvement is not as aresult of coercion)C • Performs limited function under direction• Close involvement but engaged bycoercion/intimidation/exploitation