Benson (a pseudonym) v The King - [2024] VSCA 99

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0198

GREG BENSON (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	20 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 99
JUDGMENT APPEALED FROM:	[2023] VCC 1809 (Judge Hassan)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Sentence – Indecent act with a child under 16 – Rolled up charge – Applicant foster parent of victim – Whether judge sentenced as though for a course of conduct charge – Whether sentence manifestly excessive – Application for leave to appeal refused.

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Counsel
Applicant:		Ms G Connelly
Respondent:		Ms M Mahady
Solicitors
Applicant:	Ascot Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

On 4 October 2023 the applicant pleaded guilty to one charge of indecent act with a child under 16. On 6 October 2023 he was sentenced as set out in the table below.[1]
[1]DPP v Greg Benson (a pseudonym) [2023] VCC 1809 (‘Sentencing reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Indecent act with a child under 16	10 years’ imprisonment	3 years’ imprisonment	N/A
Total Effective Sentence:		3 years’ imprisonment
Non-Parole Period:		1 year and 10 months
Pre-sentence Detention Declared:		Nil
Section 6AAA Statement:		5 years’ imprisonment with a non-parole period of 3 years
Other Relevant Orders: Pursuant to the Sex Offenders Registration Act 2004, the length of the reporting period is 8 years.

The applicant now seeks leave to appeal against his sentence on two grounds, namely:
(1)The learned sentencing judge erred in sentencing the applicant as though for a course of conduct charge.
(2)The sentence and non-parole period are manifestly excessive in all the circumstances.
For the reasons that follow, leave to appeal should be refused.

Circumstances of the offending

The applicant was the foster parent of the victim, Jemma Turner.[2] Ms Turner and her older sister commenced living with the applicant and his wife, Marilyn Benson,[3] in 1998 when Ms Turner was four years of age.
[2]A pseudonym.
[3]A pseudonym.
During the years 2000 to 2006, the applicant indecently assaulted Ms Turner.
As an adult Ms Turner could recall four specific instances of indecent assault. These formed the basis of a single charge on the indictment. They were particularised as follows:
(1)Ms Turner was on the top bunk in her bedroom one evening. The applicant asked her for a goodnight kiss, leant over the bunk railing and kissed Ms Turner on the lips.
(2)Whilst Ms Turner was in the rumpus room of the family home and lying behind a large wooden toybox, the applicant walked in and closed the door behind him. He licked Ms Turner’s vagina as she lay on the floor behind the toybox with her pants off and her legs over the applicant’s shoulders. Marilyn Benson walked into the room at one stage…

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.

Continue reading Benson (a pseudonym) v The King

Details

AGLC: Benson (a pseudonym) v The King [2024] VSCA 99
Case: [2024] VSCA 99
Decision Date: 20 May 2024

CaseChat Overview and Summary

Benson, a pseudonymous applicant, sought to appeal against a sentence imposed for committing indecent acts with a child under the age of 16. The case was heard in the High Court of Australia. The central issue revolved around whether the judge had mistakenly considered the sentence as if it were a rolled-up charge for a course of conduct, rather than an isolated act, and if the sentence was manifestly excessive.

The legal questions before the court involved interpreting the sentence handed down by the lower court and determining whether there was any error in the judge’s approach to sentencing. Specifically, the court needed to ascertain whether the judge had inadvertently treated the single act as a series of continuous offences, which would typically attract a more severe penalty. Additionally, the court had to evaluate whether the sentence was manifestly excessive when viewed in light of the correct legal framework.

The High Court found that there was no indication that the judge had sentenced the applicant as though the charge was a course of conduct rather than a single act. The court also concluded that the sentence was not manifestly excessive when properly assessed against the legal principles applicable to the offence of indecent acts with a child under 16. Consequently, the application for leave to appeal was refused. The court's reasoning was grounded in a careful examination of the sentencing remarks and an understanding of the appropriate legal standards for such offences.

Orders