Benson (a pseudonym) v The King
[2024] VSCA 99
•20 May 2024
| 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 before walking out. The applicant told her that if Marilyn Benson asked her about it, she was to tell her that they were playing ‘Mummies and Daddies’.
(3)The applicant was with Ms Turner in the bathroom while the applicant was getting into the shower. He had an erection and said to her ‘Can you kiss it?’. Ms Turner felt uncomfortable. The applicant encouraged her by saying words such as ‘please, just a quick little kiss’. As a result of feeling pressured, Ms Turner put her closed lips to the end of the applicant’s penis very quicky.
(4)When Ms Turner was in Grade 6 in 2006, the applicant licked the outside of Ms Turner’s vagina as she was laying on her back on bits of bark and left-over dirt from a wood pile underneath the veranda of the applicant’s house.
At some stage in 2006, Ms Turner told Marilyn Benson that the applicant had been sexually assaulting her. After this conversation, there were no further instances of offending by the applicant against her, although the applicant would sometimes make inappropriate sexualised comments to Ms Turner.
Ms Turner did not tell anyone else about the applicant’s offending until she spoke to one of her cousins in 2020. In 2021 Ms Turner contacted Marilyn Benson via Facebook Messenger and referred to the sexual abuse to which she had been subjected by the applicant.
In 2022 Ms Turner participated in a pre-text call with the applicant. The applicant apologised for any harm he caused her but indicated that he did not recall the specific incidents referred to by Ms Turner. When Ms Turner said, ‘I…thought that was normal…I thought all dads did that with their daughters’, the applicant responded ‘Look, it wasn’t all bad, was it?’.
In a subsequent pre-text call to which both Ms Turner’s husband and Marilyn Benson were party, the applicant agreed that he had licked Ms Turner’s vagina.
Police interview and procedural history
The applicant was interviewed by police on 15 March 2022. He denied the allegations and told police that Ms Turner had been aggressive and threatening in the pre-text phone calls and that this had caused him to be admitted to Sunshine Hospital due to a ‘meltdown’. The applicant called the second particularised incident ‘ludicrous’.
The applicant was charged on 27 December 2022. He indicated his willingness to plead guilty in March 2023 and formally entered his plea on 12 May 2023.
The applicant’s personal circumstances
The applicant was born in Queensland in 1949. He was 74 years old at the time of sentence. He is one of a sibship of three brothers. He and his family moved to Melbourne when he was 10 years old.
The applicant’s father abused alcohol and was violent towards him. The applicant’s relationships with his mother and brothers were more positive. His mother and father separated when the applicant was 16 years of age, and thereafter the applicant had minimal contact with his father.
When he was 17, the applicant moved to the United Kingdom. He maintained contact with his mother and brothers. His mother died after a series of strokes when she was in her early sixties. Although one of the applicant’s brothers has ceased contact with him as a result of this offending, he has the continued support of his other brother.
The applicant completed schooling to Year 10 and was an average student. Prior to moving to the United Kingdom, he worked at a nursery. While in the United Kingdom, he predominantly worked in hospitality. Upon his return to Australia the applicant completed a Diploma in Horticulture and obtained employment as a gardener. He then worked in landscaping and subsequently as a carer for the Department of Human Services. He retired in 2019.
The applicant married Marilyn Benson in 1991. It was his second marriage. They were unable to have children but adopted a son, who has a mild intellectual disability and some speech problems. The applicant’s son was 20 years of age at the time of sentence. A reference from the applicant’s wife was tendered in which she said that he was a kind and loving man. She noted her fear and apprehension about the applicant’s incarceration, particularly with respect to the prospect of caring for her son alone.
The applicant has never abused alcohol. Aside from some recreational drug use in his youth, the applicant has not used drugs.
The applicant has no criminal history.
The applicant suffers from a range of health conditions, including chronic hypertension, dyslipidemia, impaired glucose tolerance, arthritis, osteoarthritis and chronic kidney disease. The osteoarthritis is the most debilitating. It causes the applicant intense pain in his shoulders and feet and requires anti-inflammatory medication, pain killers and steroid injections to treat.
Dr Matthew Barth, psychologist, assessed the applicant on 31 May and 10 July 2023 and prepared a report dated 20 September 2023. Dr Barth diagnosed the applicant with adjustment disorder (with mixed anxiety and depressed mood). He found the applicant to be introverted and of average intelligence. Dr Barth found that the most notable aspects of the applicant’s sexual adjustment were his poor concept of appropriate interpersonal boundaries and limited understanding of the normative emotional and behavioural development of female children. He ultimately assessed the applicant as a low risk of reoffending.
The plea hearing
The applicant conceded his offending was a serious example of the offence and warranted an immediate term of imprisonment. He accepted that the offending was aggravated by the fact that the offence occurred over four separate incidents, he was in a position of trust over the victim, her young age and that the offending occurred on intimate parts of her body. The applicant also accepted that s 5AA of the Sentencing Act1991 applied such that the sentencing judge could not have regard to his previous good character as it was of assistance to him in the commission of the offence.
The applicant submitted that his sentence should be mitigated by his personal circumstances, in particular his advanced age and medical conditions. The report of Dr Barth, which said that there was a real risk of deterioration in the applicant’s mental condition during his incarceration, was argued to enliven limbs 5 and 6 of Verdins.[4]
[4]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
The applicant emphasised his early plea of guilty and its enhanced utilitarian value as a result of the backlog of cases due to the COVID-19 pandemic.[5] He submitted that he was genuinely remorseful and had accepted responsibility for his offending. He argued his prospects for rehabilitation were excellent.
[5]Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169 (‘Worboyes’).
The prosecutor submitted that the offending, particularly the two specific instances where the applicant licked the victim’s vagina, was serious. The applicant was in the position of a parent, the victim was young and the applicant was aware that the victim had previously been sexually abused.
The prosecutor accepted the applicability of Verdins principles 5 and 6 and that the applicant’s advanced age and medical conditions were mitigating factors.
Sentencing reasons
In her Sentencing reasons, the judge briefly summarised the offending behaviour,[6] the applicant’s personal circumstances[7] and the parties’ submissions.[8]
[6]Sentencing reasons, [3]-[10].
[7]Sentencing reasons, [16]-[28].
[8]Sentencing reasons, [29]-[40].
In assessing the gravity of the offending and the applicant’s moral culpability, the judge noted the single charge to which the applicant had pleaded guilty rolled up four incidents. While the applicant was to be sentenced in accordance with a single maximum penalty, the sentence imposed had to reflect the totality of his criminality.[9] The judge also observed that the applicant’s offending involved highly invasive sexual conduct. It commenced when Ms Turner was six years of age and continued over several years. It was committed on a highly vulnerable child whom the applicant knew had previously been the victim of sexual abuse. Along with the breach of trust associated with the applicant’s position as the victim’s foster parent, the judge found that the presence of these factors aggravated the offence and meant that the applicant’s moral culpability was ‘very high’.[10]
[9]Sentencing reasons, [42].
[10]Ibid.
The judge emphasised the principles of general and specific deterrence along with the need for denunciation.[11]
[11]Sentencing reasons, [43]-[44].
The judge accepted that his risk of reoffending was low and assessed his prospects of rehabilitation as good.[12] Pursuant to s 5AA of the Sentencing Act 1991, the judge found that the applicant’s prior good character was a factor which enabled him to offend and, consequently, disregarded his prior good character in determining the sentence to be imposed.[13]
[12]Sentencing reasons, [45]-[46].
[13]Sentencing reasons, [47].
The judge accepted that the applicant’s advanced age meant that any sentence imposed may involve some of the last years of the applicant’s life and that the applicant’s medical conditions would make custody more difficult.[14] Modest weight was given to Verdins limbs 5 and 6.[15] The judge also took into account the fact that it was the applicant’s first time in custody and that he would worry about his wife and his adopted son’s welfare while in custody.[16]
[14]Sentencing reasons, [48].
[15]Ibid.
[16]Ibid.
Finally, the judge accepted that the applicant had entered an early plea of guilty and was entitled to an enhanced Worboyes discount. The judge also found that the applicant’s plea of guilty in conjunction with his admissions on other occasions was indicative of remorse.[17]
[17]Sentencing reasons, [49].
Ground 1 – Course of conduct
Applicant’s submissions
Based upon selected words in the Sentencing reasons, the applicant argues that the judge misapprehended the fundamental difference between a ‘course of conduct’ charge and a ‘rolled up’ charge. While the former enables non-particularised offending to be taken into account in assessing the totality of the criminality involved in the charge, the latter only permits the sentencing judge to take into account the particularised incidents in the rolled up charge.
The applicant argues that the words ‘…the sentence I impose must reflect the totality of [the applicant’s] criminality…[the applicant’s] abuse began when Ms Turner was only six years old and continued over several years’ is the ‘language of course of conduct sentencing’.
That the judge impermissibly sentenced for unparticularised offending is further argued to be reinforced by the sentence actually imposed, being ‘at least very stern’.
Respondent’s submissions
The respondent submits that the judge did not make the error contended for by the applicant.
The applicant was sentenced on the factual basis outlined in the Summary of Prosecution Opening for the Plea. The introduction to that document referred to four specific occasions of indecent assault rolled up into a single charge. Further, the Prosecution Submissions on Sentence clearly identified the single charge as a rolled up charge of four incidents.
The respondent argues that the impugned passage of the Sentencing reasons, when read in context, makes clear that the judge understood the rolled up nature of the charge, as does the sentence imposed.
Analysis
There is no merit in this ground.
The impugned words in the Sentencing reasons are drawn from a single paragraph. It is convenient to reproduce it in full.
Your offending consists of four incidents rolled-up in a single charge. One of the benefits to you by virtue of your plea is that you are sentenced in accordance with a single maximum penalty. However, the sentence I impose must reflect the totality of your criminality. Your behaviour did not involve penetration, but it did involve highly invasive sexual conduct, in particular you licking the victim’s vagina, which must have left Ms Turner feeling violated, confused and distressed. Your abuse began when Ms Turner was only six years old and continued over several years. She was a vulnerable child, and you knew this. You knew she had been the victim of sexual abuse, and this is a highly aggravating circumstance of your offending. The most aggravating aspect of your offending is the gross breach of trust it involves because you were Ms Turner’s foster parent – a role which should have involved you caring for her and protecting her at a time when her own parents were either unable or unwilling to perform this role, and not abusing her for your own sexual gratification. Your moral culpability is very high.[18]
[18]Sentencing reasons, [42].
Read in context and noting that the paragraph begins with the judge referring to the rolled up nature of the charge, the selected impugned words do not have the import argued for by the applicant. The judge’s reference to sentencing for the totality of the applicant’s criminality is plainly a reference to the four incidents of the rolled up charge. The reference to the abuse beginning when Ms Turner was six and continuing over several years is nothing more than a factually correct statement. The abuse did occur on four occasions over a six year period, during which period the victim was aged between six and 12 years of age.
Nor does the sentence imposed compel any different conclusion.
Ground 1 must fail.
Ground 2 – Manifest excess
Applicant’s submissions
The applicant argues that the sentence and non-parole period are beyond the range of sentences reasonably open to the judge in light of the mitigating factors on which the applicant could call in aid. These were the early plea – and its Worboyes benefit, actual remorse, onerous circumstances of custody, delay, good prospects of rehabilitation, low risk of reoffending and subsequent good character.
While it is acknowledged that there was no submission as to the effect of delay made to the sentencing judge, the applicant argues that the offending ceased without the intervention of authorities after the victim’s complaint to the applicant’s wife in 2006. The following 17 years of offence free conduct demonstrated the applicant’s rehabilitation. It also meant that he had a complaint hanging over his head, more intensely so from the 2021 Facebook Messenger communication between Ms Turner and the applicant’s wife, when the spectre of prosecution hung over him.
The applicant further submits that given the findings that his risk of re-offending was low and his prospects of rehabilitation were good, the judge did not moderate the principle of specific deterrence and should have because it had ‘no practical work to do’. And, the judge should have accorded more than ‘modest weight’ to the applicant’s physical and mental impairments.
Finally, by reference to lower sentences imposed for comparable offending in other cases,[19] the applicant submits that the sentence of 3 years is wholly outside the available range of sentences and that the resentencing exercise should result in the imposition of a partially suspended sentence rather than a term of imprisonment with a non-parole period.
Respondent’s submissions
[19]JBM v The Queen [2013] VSCA 69; DPP v Courtney [2017] VSCA 233.
The respondent contends that the sentence is not manifestly excessive.
The applicant’s moral culpability was very high. The offending constituted a grave breach of trust on a vulnerable child in circumstances where the applicant knew Ms Turner had previously been subjected to sexual abuse. The sentence demonstrates that the judge balanced these aggravating factors against the mitigating factors relied upon by the applicant.
The respondent argues that delay was not a powerful matter in mitigation. There was no evidence to establish that the applicant suffered any anxiety in relation to the delay between the time of the offending and the charge date and no submissions were made to that effect. The judge did take into consideration that the applicant had led a ‘productive and blameless life’ since 2006.[20]
[20]Sentencing reasons, [47].
Dr Barth’s report indicated that the applicant lacked insight into his offending. Specific deterrence therefore still had some work to do, notwithstanding his good prospects of rehabilitation and low risk of future offending. So much was conceded by the applicant’s counsel before the judge. The ‘modest weight’ afforded by the judge to the applicant’s impairments was appropriate. There was evidence that his difficulties could be managed appropriately in custody.
Finally, the respondent submits that other cases are fact dependent and of limited utility, but nevertheless sentences of 3 years have been upheld for offending of this nature. Cases where a sentence of less than 3 years has been imposed can be distinguished.
Analysis
It is well established that the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge. [21] It must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of both the offending and the offender. It is a stringent requirement, difficult to satisfy.[22]
[21]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[22]Ibid.
The judge was correct to find that the offending was a serious example of the offence of indecent act with a child under 16, particularly the two instances in which the applicant licked the vagina of Ms Turner. The judge was further correct to describe the applicant’s moral culpability as very high. He was in loco parentis to a young and vulnerable child whom he knew had suffered previous sexual abuse. The second particularised incident involved an instruction for Ms Turner to lie to her foster mother if questioned.
Against those findings, there is nothing in the Sentencing reasons or in the sentence imposed that indicates that the judge failed to give appropriate weight to the matters in mitigation relied upon by the applicant.
The issue of delay was raised for the first time on this application. Delay can be a powerful mitigating factor.[23] It has two limbs: unfairness and rehabilitation.[24] An offender seeking to rely on either or both limbs will, ordinarily, be expected to adduce some evidence to support them.[25] No such evidence was placed before the sentencing judge. There was nothing in the report of Dr Barth to support any finding that the ‘spectre’ of a police complaint either from 2006 or 2021 was a burden to the applicant. This was a case where evidence of any unfairness was necessary. The situation is markedly different from one in which a person is interviewed by police and there is an inordinate delay in the laying of charges or where a person is charged and there is an inordinate delay in the completion of the criminal process. In such cases a sentencing judge may be prepared to accept as a matter of logic rather than evidence that some unfairness has been occasioned to the offender. Here, the applicant may have assumed that the longer Ms Turner did not make a police complaint the more likely it was that she would never do so. And, if the applicant did experience feelings of guilt, shame or worry throughout the 17 years between the cessation of the offending and the police complaint, those feelings arose from the fact of his offending rather than from the burden of any involvement in a sometimes cumbersome and slow criminal justice system.
[23]R v Merrett (2007) 14 VR 392 (Maxwell P, Chernov JA and Habersberger AJA); [2007] VSCA 1.
[24]R v Cockerell (2001) 126 A Crim R 444, 447 [10] (Winneke P, Buchanan and Chernov JJA); [2001] VSCA 239.
[25]Tones v The Queen [2017] VSCA 118, [38] (Maxwell P, Redlich and Kyrou JJA).
The judge did, however, moderate the sentence for the rehabilitation demonstrated by the applicant following the offending. The judge said:
I accept that your prospects of rehabilitation are good. I make this assessment based on your lack of any further offending over a number of years, and because you seem otherwise to have led a productive and blameless life since this offending. I take your subsequent good character into account this way.[26]
[26]Sentencing reasons, [46].
Given the evidence before the judge as to the applicant’s lack of insight into his offending, the principle of specific deterrence was of relevance in the sentencing exercise. The sentence imposed does not indicate that the judge failed to appropriately moderate it. Again, the sentence does not demonstrate that insufficient weight was accorded to the applicant’s mental and physical impairments.
Finally, comparable cases are of little use given each is so fact dependent. That said, the range of sentences imposed in such cases, in addition to all other matters, demonstrates that the sentence imposed here was within the range available to the judge in the sound exercise of her sentencing discretion.
It follows that ground 2 must fail.
Conclusion
The application for leave to appeal against sentence is refused.
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