Director of Public Prosecutions v Benton ( a pseudonym)

[2016] VCC 1994

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

COLIN BENTON (a pseudonym)

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 7 June 2016; 8 June 2016 (Arraignment); 20 July 2016; 10 August 2016 and 30 November 2016 (Plea)
DATE OF SENTENCE:	13 December 2016
CASE MAY BE CITED AS:	DPP v Benton ( a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1994

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – two charges indecent act with child under 16 years – Representative charges - Victims daughters of accused – Diagnosis of schizophrenia – Seriously compromised and unstable mental health

Legislation Cited:     Sex Offender Registration Act 2004

Cases Cited:R v Verdins (2007) 16 VR 269; Boulton v The Queen (2014) 46 VR 306

Sentence:Convicted and sentenced to a Total Effective Sentence of 9 months’ imprisonment combined with Community Corrections order of 2 years’ duration with mandatory and other conditions – Pre-sentence detention of 13 days declared – s. 6AAA Sentencing Act 1991 –Sexual offender registration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Solicitor for Public Prosecutions
For the Offender	Ms J. Swiney	Rainer Martini & Associates

HER HONOUR:

1Colin Benton[1], you have pleaded guilty to two representative charges of indecent act with a child under 16 years.

[1] Colin Benton is a pseudonym.

2Each charge is representative of two occasions of offending.

3The maximum penalty for the offence is 10 years' imprisonment.

4The maximum penalty reflects the seriousness with which Parliament regards this offence.

5Your offending was opened as follows:

6I was told that you were 38 when you committed the offences and you are now 40 years old. Your victims, Caitlyn[2] and Emily[3], are your two daughters, who were 5 and 6 years old when you sexually assaulted them.

[2] Caitlyn is a pseudonym.

[3] Emily is a pseudonym.

7At the time that you committed the offences, you were living in a share house in Ferntree Gully, as you and the victims’ mother, Hilary Bishop[4], had separated.

[4] Hilary Bishop is a pseudonym.

8You would visit the children in Ms Bishop’s residence about once a month or every fortnight during school term and about three times during the school holidays. During these occasions Ms Bishop left the children alone with you whilst she went to the gym.[5]

[5]Statement of Hilary Benton (a pseudonym) (p.85)

Offending

9During the 2014 Term 3 school holidays (Saturday, 20 September 2014 to Sunday, 5 October 2014) you made your daughters masturbate your penis on two separate occasions when their mother was not present at the address.

10I sentence you in respect of the first of these occasions, which is the occasion relied on by the Prosecution for the purposes of sentencing.

First occasion and the occasion for which the offender falls to be sentenced

11In relation to this first occasion, Caitlyn walked out of her bedroom in the morning. She saw that you were playing with your penis on the couch. You went to Emily’s room and asked, “Do you want to massage my willy?” and she said “Ok”.

12You then asked Caitlyn if she wanted to massage your penis. She felt she had to say yes because you told her that you would tell her mum that she did something naughty if she didn’t do what you said; she did not want get into trouble. You took her to the couch in the lounge room.

13Caitlyn saw Emily massage your penis and said to you, “Stop that, that’s disgusting”. Caitlyn then played with your penis. You ejaculated over the couch whilst Emily was masturbating you. You cleaned this up.

Second occasion

14In relation to the second occasion, or another occasion, which is the occasion on which I do not sentence you but it is represented in each of the charges, Caitlyn, Emily and you were in their mother’s bedroom. Caitlyn used her gloves to massage your penis. You said, “Oh that feels good” and that you wanted more and to come to the couch. Emily was massaging your penis with her bare hands. You ejaculated. Caitlyn got a bucket from the bathroom and held the bucket to stop drips of ejaculate going on to their mother’s new bedding.

Investigation

15I was told that on Monday, 6 October 2014, which was the first day after the school holidays, Caitlyn disclosed the offending to Ms Jill Houghton[6]. Ms Houghton volunteered at the school to help the children with their reading. She asked Caitlyn if she had a good holiday. Caitlyn replied, “Only a bit good” and then said, “Daddy made me massage his willy again.” [7]

[6] Jill Houghton is a pseudonym.

[7] Statement of Jill Houghton (a pseudonym) (p.78) and another witness (p.81)

16Following the disclosure the school immediately notified The Department of Human Services and police.

17Later that day police spoke with both victims who made further disclosures to police.

18Forensic examination revealed your DNA (sperm fraction) on the couch and coffee table.

Record of Interview

19You were arrested on 7 October 2014 at your home and taken to the Williamstown Police Station. You said that you were suffering from schizophrenia and a Detective Senior Constable observed that you looked very drowsy.[8] The interview was suspended so that you could be examined by a Forensic Medical Officer who determined that you were fit to be interviewed and recommended the presence of an independent person.

[8] Statement of Detective Senior Constable (p.76)

20During the record of interview, you said the following things –

21When asked about the semen on the couch you said it might be yours when you masturbated while watching porn in the past when you used to live at the house. (Q 613-621)

22You said that since moving out you probably masturbated in the toilet alone and the girls would have been in the house watching TV. You didn’t wash your hands on that occasion and probably just wiped it on your legs. (Q 622-628, 698-701)

23As to the allegation that you asked the girls to massage your penis – you denied this. (Q 648, 659)

24On the question of whether either of the girls had touched you on your penis – you said probably by accident; brushing along or giving you a hug; but in the past you said they tried hitting you in the ‘balls’. (Q 711-714)

25Your offending on the occasion for which I sentence you is aggravated by the fact that each of your children were of tender years, and also by the fact that you grossly breached the trust that they placed in you. They were entitled to look to you as a father who would protect them from harm, rather than coerce them to engage in such vile conduct. Further, the offending against one victim took place in the presence of the other. They were also entitled to feel safe in their own home. Moreover, your offending in respect of Caitlyn is aggravated by the fact that you threatened to tell her mother a falsehood if she didn’t do as you told her. You have grossly breached the trust that their mother placed in you as well.

26Mr Benton, your offending is serious and calls for a punishment which is just in all of the circumstances. Your conduct must  be denounced in all of the circumstances.

27I take into account the victim impact statement which was completed by Ms Bishop and was tendered at the plea hearing.  Ms Bishop talks about her feelings of guilt for leaving the girls in your care and her anger towards you. She says she has noticed some behavioural issues with each of the girls, although they have settled somewhat in more recent times. She is concerned, most understandably, as to how the abuse will impact upon them in years to come, especially insofar as their ability to form relationships is concerned.

28You have a criminal history, although it is of a fairly limited nature, and there is no history of sexual offending. You were dealt with in the Magistrates’ Court in 2007 for possession and use of cannabis, and with possessing a controlled weapon without excuse and without exemption. You were fined $350 without conviction.

29In August 2014, you were convicted of driving whilst disqualified and were sentenced to 1 month imprisonment which was wholly suspended for 9 months and you were fined for using an unregistered vehicle.

30One or two months after this you committed the offences for which I now sentence you.

31Your criminal history is not overly relevant to the offences before me, save to say that you have broken the law on two previous occasions, with only one of those being in fairly recent times.

32You have a documented history of schizophrenia, having been diagnosed when you were 21 years old. You were placed on Depo medication as at that time, but I understand that you have not always taken your medication when you were supposed to. It is unclear as to whether you were taking your medication as at the time of the offending, but you told Mr Cunningham, psychologist, that you were smoking methamphetamine and cannabis during the period of the offending. You told him that you did not know why you offended - that you may have heard voices instructing you. You had never fantasised about underage individuals, and you acknowledged that your conduct was wrong.

33Your sister told Mr Cunningham that your offending was out of character. She said that you could become delusional and hallucinate. She said that you are often aware of the deterioration of your mental state; that she had never been aware of any deviant behaviour by you. She spoke of your mother being violent toward your father at home and believed that your mother was also suffering from schizophrenia and had suffered from psychosis.

34You have experienced significant periods of unstable mental health over the years with multiple admissions to hospital and involvement with the CAT team. You have been managed by your GP and intensively managed by Chandler Community Clinic. At the plea hearing a carer from Chandler House attended with you. You continue to receive Depo injections as well as oral medication. Mr Cunningham is of the view that you require support through appropriate counselling as well.

35I have taken into account the reports from Dr Jayasuriya, psychiatrist, Eastern Health and from Mr Cunningham in a general sense but it was not submitted that your mental health had a relevant impact on your offending conduct so as to reduce your moral culpability.

36Dr Jayasuriya’s report was principally relied upon by your counsel. He was of the view that your mental state depended on a combination of adherence to treatment, substance use and psychological stressors. He said: ‘While imprisonment can have an impact on the stability of his mental state, this could be minimized if Mr Benton refrains from using illicit substances and receives regular treatment for his chronic mental illness. Similarly, if he were to be incarcerated, he would need to receive appropriate treatment for his mental illness with close monitoring of his mental state.’

37You have reported that you do not recall committing the offences for which I now sentence you. I understand that you have also said that you were affected by methamphetamine and cannabis as at that time. It concerns me that despite intensive intervention from health professionals to have you appreciate the need to abstain from drugs which are compromising your mental health, you have indicated that this is something that you can manage yourself. Mr Benton, it is not something you can manage yourself, and if you are to improve your wellbeing you must accept advice from the experts about this.

38Ms Swiney acknowledged that a level of care could be made available in prison but expressed the concern that this would not adequately address your needs. Upon remanding you in custody, I arranged for my associate to notify the relevant authorities as to your diagnosis and high level of need for treatment and close monitoring. I will ensure that these notifications are renewed after today's sentence.

39I was told by your counsel that the following events impacted negatively on your mental health in the past few years:

40In March 2014, your family pet of 14 years passed away which caused you a great deal of distress. This was exacerbated by a dispute as to where your pet was to be buried.

41In October 2014, you received death threats via Facebook, following being charged with the offences before me.

42In December 2014, your father suffered a sudden heart attack and you were part of a family decision in respect of turning off life support

43In January 2015 your mental health declined and you expressed suicidal thoughts to your family.

44In April 2015 your grandfather became ill and the family took turns at sitting at his bedside until he passed away at home a week later.

45In December 2015, your mental health declined to the point where the CAT team was called to your home.

46In February this year you locked yourself in your bungalow for 4 days until the police arrived. In March the police attended your home once more as your family was most concerned about the paranoid and suicidal thoughts that you were expressing.

47From 2 to 6 June of this year you were admitted to hospital. Your family described you as being in the worst mental state that they had ever seen.

48I accept that the first event referred to in the series of events I have just described was significant for you in the context of your fragile mental health. I note that a number of severe episodes in respect of your mental health have coincided with proceedings in respect of this matter. These episodes have resulted in delaying the matter, but I accept that the episodes were genuine and I do not criticise you in any way for this.

49In view of your seriously compromised mental health, which has been most unsettled in recent times, necessitating a good deal of delay as you were too unwell to attend Court, I moderate the weight that I would otherwise attach to general deterrence and specific deterrence. If not for your mental health issues, strong weight would attach to general deterrence so as to seek to deter others from behaving as you have. However, I have reduced the weight somewhat in view of your poor mental health.

50I also make allowance for the fact that any time in gaol will be harsher for you than for someone without impairment of mental function, and further, I allow for the fact that there is a significant risk that your mental health may deteriorate within a custodial setting. This is consistent with the opinion of Mr Cunningham, psychologist, who also says that you would likely be vulnerable to abuse and manipulation in a prison environment. It is to be hoped that abstention from illicit substances whilst in gaol helps to improve your mental health to a degree.

51Mr Cunningham was of the view that you presented with a moderate risk of re-offending and that your mental illness is the main contributor to your risk. However, your counsel, as I have said, did not submit that this impacted on you in any relevant way so as to reduce your moral culpability in relation to the offending for which I now sentence you.

52I take into account your plea of guilty and the stage at which it was entered. You pleaded guilty without the need for evidence to be given at trial, although you did have a contested committal hearing. Of course, the victims did not give evidence at this stage, but others did, including their mother. In the circumstances, I allow for a fairly substantial discount in the sentence that you would otherwise receive because you have saved the witnesses, especially the victims, the time and trouble of giving evidence at trial and you have saved the community the time and expense of contested proceedings.

53I also factor in your background. You had a difficult upbringing as your mother also has had mental health issues. Your father was violent. He left the family when you were only 7 and he did not return for 23 years. Your grandfather was the only male role model in your life and was a central figure for as you grew up.

54You left school after year ten then engaged in unskilled work until you turned 21 which was when you were diagnosed with schizophrenia. You have not undertaken paid work since and you have been receiving a disability pension.

55You have the support of your mother and sister. Your sister is really your best support, and will stand by you, although she has been somewhat compromised as she also wishes to maintain a relationship with your children, her nieces. You had been residing with your mother up until you were remanded in custody following the plea hearing.

56I understand that before your remand, you were living with your mother, but this was not ideal because of her mental health issues. However, your sister will be a good source of support. Down the track, you would like to live on your own.

57In all of the circumstances, if not for the operation of Verdins’ principles, I would have attached moderate weight to specific deterrence, but I reduce this somewhat because of your poor mental health. However, I place moderate weight on the need to protect the community because of your mental health issues, your use of illicit substances and the nature of the offending in which you have engaged.

58I have also moderated the weight that I would otherwise attach to the need to punish you and denounce your actions because of your mental health issues.

59I take into account the delay that there has been in this matter, notwithstanding that it is not said that the Prosecution are responsible for this. However, this is not relevant to this aspect. You have had the anxiety of the matters hanging over your head since October 2014 which has translated into serious bouts of mental illness for you, and you have also not re-offended during this time, which is to your credit and counts in your favour.

60Your Counsel submitted that a Community Corrections order would be appropriate in your case, and relied on the case of Boulton in support of this. She submitted that the community and you would be best served by the imposition of a CCO which could serve to punish you and to also ensure that you received the mental health treatment that you so needed. In this regard, she referred to Mr Cunningham’s report about the lack of psychological intervention and case management in the community to date.

61In the event that I was against this submission, Ms Swiney submitted that I ought temper any term of imprisonment in view of the matters in mitigation, especially the matters relating to your mental health.

62The Prosecution submitted that a period of immediate imprisonment was warranted in combination with a CCO but that a CCO on its own was outside the range of available sentences.

63In the course of the plea hearing, reference was made to the case of Cole; however, insofar as sentencing practice is concerned, in my view it is not of great assistance, as the facts in that case are quite different to yours.

64In my view, your offending is too serious to accept your counsel’s primary submission, and I am afraid that a gaol term is warranted but this will be combined with a CCO and tempered in view of the weight which I have moderated in relation to various sentencing principles.  In view of the matters in mitigation, in particular, your poor mental health, as I say, I have tempered the gaol term to a fairly significant degree. I make it clear that I have only sentenced you in respect of the first occasion of offending as it applies to each of your children, although I have factored in the impact on each of them as a whole, as related to me by their mother in the Victim Impact Statement. Although you do not fall to be sentenced as a serious sexual offender, I have taken the view that some cumulation is warranted as between charges 1 and 2 as there were separate victims involved.

65Would you please stand up Mr Benton?

66You are convicted of charges 1 and 2 on the indictment.  By reason of your convictions for these offences, you are to be recorded as a registrable offender for 15 years.  You must report your personal details to the Chief Commissioner of Police annually for 15 years.  You must first report these details within 7 days after your release from custody. Details in writing of these reporting conditions will be served upon you in a moment by my associate.  I will ask your counsel to attend to an acknowledgement of that notice and have you sign it.

67As I have said, the term of imprisonment is to be served in combination with a Community Corrections Order and that Community Corrections Order will be in the following form.

68Would you please listen carefully as I can only make this order if you consent to it being made:

69The CCO would run for 2 years.

70The terms of the CCO that I propose are the mandatory terms that apply to all Community Correction Orders which are:

71You must not commit another offence for which you could be imprisoned during the time that the order is in force;

72You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

73You must report to, and receive visits from, the Secretary to the Department of Justice or his or her delegate;

74You must report to the Ringwood Community Corrections Centre within two clear working days of your release from gaol.

75You must let a community corrections officer know within two clear working days of you changing your address or job;

76You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate;

77You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.

78In addition to these mandatory terms the following conditions that would apply are:-

79Supervision

80You must be under the supervision of a Community Corrections Officer for a period of 2 years.

81Treatment and Rehabilitation

82You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.

83You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, if required, and as directed by the Regional Manager.

84You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager. In particular, you are to be assessed by the Specialised Offender Advice and Treatment Services, and participate in any sex offender program deemed appropriate through this service.

85Mr Benton, do you consent to the terms and conditions of the proposed order?

86OFFENDER:  Yes, Your Honour.

87HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this CCO then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges-in which case you may well be sentenced to a further period of imprisonment. I would regard a breach of the CCO as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

88Do you understand this?

89OFFENDER:  Yes, Your Honour.

90HER HONOUR:  Do you maintain your consent to the order?

91Offender:  Yes, Your Honour.

92HER HONOUR:  Therefore in relation to the charges, in addition to a term of imprisonment which I shall tell you about in a moment, you will be sentenced to a CCO in the terms and conditions that I have just set out.

93I will now have the sexual offender registration and the community corrections order taken up to you and there will be an acknowledgement and some documents for you to sign.  I will have Ms Swiney help you with that.  So take a seat for a moment, please.

94In terms of the periods of imprisonment I sentence you as follows:

95Charge 1       7 months' imprisonment

96Charge 2       7 months' imprisonment

97I direct that 2 months from the sentence on charge 2 be served cumulatively with the sentence on charge 1, giving a total effective sentence of 9 months' imprisonment.

98I declare that you have already served 13 days by way of pre-sentence detention which will be deducted from this sentence.

99If not for your pleas of guilty I would have sentenced you to a total effective sentence of 14 months' imprisonment with a two year CCO.