Benson (a pseudonym) v The King

Case [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:

  1. 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]

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.

  1. 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.

  2. For the reasons that follow, leave to appeal should be refused.

Circumstances of the offending

  1. 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.

  2. During the years 2000 to 2006, the applicant indecently assaulted Ms Turner.

  3. 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…

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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