Director of Public Prosecutions v Greg Benson (a pseudonym)
[2023] VCC 1809
•6 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00773
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GREG BENSON (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HASSAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2023 | |
DATE OF SENTENCE: | 6 October 2023 | |
CASE MAY BE CITED AS: | DPP v Greg Benson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1809 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence —plea – one charge of indecent assault with a child under 16, offending occurred of a six year period.
Cases Cited:R v Verdins & Ors [2007] VSCA 102 ; John Traeger (a pseudonym) v The
Queen [2019] VSCA 231; Worboyes v The Queen [2021] VSCA 169;
Sentence: Total effective sentence of three years’ imprisonment with a non-parole of one year and ten months.
Section 6AAA declaration: But for the plea of guilty the sentence that would have been imposed – five years’ imprisonment with a non-parole period of three years.
Plea of guilty - ---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Zammit | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr W. Blake | McClure Law |
HER HONOUR:
1Greg Benson[1], you have pleaded guilty to one charge of indecent act with a child under 16 for which the maximum penalty is 10 years' imprisonment.
[1] A pseudonym.
2A summary of prosecution opening sets out fully the agreed facts and circumstances of your offending and was tendered at your plea. Briefly stated they are as follows.
3The victim of your offending is Jemma Turner[2]. Ms Turner was your foster child. She was fostered with her sister by you and you wife, Marilyn Benson[3] in 1998 when she was 4 years old.
[2] A pseudonym.
[3] A pseudonym.
4During a six year period between 2000 and 2006 when Ms Turner was aged between 6 and 12 years old you indecently assaulted her. The prosecution relies on four particularised occasions.
5First, when she was in bed in her bedroom you kissed her on the lips.
6Secondly, when she was in the rumpus room lying on the floor you came in and closed the door behind you. On this occasion you licked her vagina.
7Thirdly, in the bathroom you made Ms Turner kiss your penis.
8And fourthly and finally when she was in Grade 6 in 2006 you again licked her vagina. This incident occurred outside.
9Ms Turner told you wife, Marilyn, at this time, and the sexual abuse stopped.
10Ms Turner did not tell anyone else until she spoke to a cousin in 2020. She communicated with your wife Marilyn in 2021 and told her again about the abuse to which you had subjected her.
11She made a pre-text call to you in 2022 in which you apologised but told her you did not remember the incidents of abuse. At one point you said 'Look it wasn't all bad, was it?'.
12In a later call in which your wife was also present you agreed that Ms Turner was not making up the allegation that you had licked her vagina and confirmed this had in fact happened.
13You were interviewed by police on 15 March 2022 you denied the offending and told police that Ms Turner had been aggressive and threatening in the phone calls and this had caused you to be admitted to Sunshine Hospital. When the second particularised incident was put to you, you said 'It's ludicrous, no comment'.
14There was a filing hearing in the Magistrates' Court on 13 January 2023. Thereafter you have been prepared to resolve this matter and plead guilty. You pleaded guilty in the Magistrates' Court on 12 May 2023 at a committal mention.
15Ms Turner did not make a victim impact statement. Ms Zammit, who appeared to prosecute informed me she wanted to but was overwhelmed and unable to. It was agreed I could have regard to her police statement in which she said that your abuse continues to affect her. She says she feels she cannot trust anyone and will never leave her two daughters alone with anyone. In addition to Ms Turner's own statements about the effects of your abuse, the law presumes harm to the victims of childhood sexual abuse, and this includes future harm.
16I turn now to your personal circumstances, and in outlining your background I refer to the submissions of your counsel, Mr Blake and to the report of Dr Matthew Barth, psychologist which was tendered at your plea.
17You were born in 1949. You are presently 74 years old.
18You were born in Queensland. You are one of a siblingship of three brothers. The family moved to Melbourne when you were 10 years old.
19Your father abused alcohol and was violent to you. He was also verbally abusive to you. You had a better relationship with your mother, and you had good relationships with your brothers. Your parents separated when you were 16 and thereafter you have had minimal contact with your father.
20You moved to the United Kingdom when you were 17. You maintained contact with your mother and brothers. You mother died after a series of strokes when she was in her early sixties. One of your brothers has ceased contact with you because of this offending. You have the continued support of your other brother.
21You were an average student. You completed your schooling to Year 10. You worked at a nursery before you went to the United Kingdom where you worked in hospitality. When you returned to Australia you completed a Diploma in Horticulture. You worked as a gardener and then as a carer for the Department of Human Services. You retired four years ago.
22You have been married twice. First in 1982 which relationship ended suddenly and distressingly for you. You married your current wife Marilyn in 1991. You were unable to have children but you have an adopted son, who is presently 20 years old. Your son has a mild intellectual disability and some speech difficulties.
23You wife, Marilyn, has written a reference on your behalf in which she says you are a kind and loving man. She says she feels scared about you going to prison, and that people she has known a long time are distancing themselves from her and your son. She says she faces challenges coping without you and caring for your son without you. She says you are worried about what will happen to her and your son if you go to prison.
24You have never abused alcohol and only drink in moderation. You used some drugs recreationally in your youth but have not otherwise used drugs.
25You have no criminal history.
26Physically you suffer a number of health conditions not unsurprisingly given your age. You have hypertension, kidney disease and osteoarthritis. Your osteoarthritis is your most debilitating health issue because it causes you a lot of pain for which you require steroid injections.
27In respect of your mental health, Dr Barth found you to be depressed and anxious to the extent sufficient to warrant a diagnosis of adjustment disorder with mixed anxiety and depressed mood. He found you to be of average intelligence. He found you to be an introverted man. He gives the opinion that although there was no history of sexual deviance in your background, the most notable aspects of your sexual adjustment were your poor concepts of appropriate interpersonal boundaries and your limited understanding of the normative emotional and behavioural development of a female child. He assessed you as a low risk of reoffending.
28Dr Barth gives the opinion that in the event of a custodial sentence you would be a vulnerable prisoner and would require monitoring by prison mental health staff. He opines you would have difficulty adjusting to a custodial environment and would be at an elevated risk of significant mood disturbance and would likely experience the custodial environment as particularly onerous.
29I turn now to the submissions of the parties and I begin with the matters relied upon in mitigation and advanced by your counsel, Mr Blake.
30First, your plea of guilty which was made at the earliest opportunity and has saved the victim and the community the cost of a trial. Mr Blake submitted your plea was also indicative of remorse on your part. He submitted although you did recant your earlier admissions in your police interview, once charged you resolved this matter promptly.
31Secondly, he relied on a combination of matters which he submitted would make your time in custody very difficult. He relied on your age, your ill health, and the report of Dr Barth enlivening Verdins[4] principles 5 and 6. He did not submit I should take into account the effects of your incarceration on your wife and son but submitted you will suffer considerable stress and anguish at the separation and worrying about their situation.
[4] R v Verdins & Ors [2007] VSCA 102 (“Verdins”)
32Thirdly, he relied on your lack of a criminal record and otherwise good character.
33Fourthly, he submitted your prospects of rehabilitation should be assessed as excellent given your lack of prior offending, Dr Barth's assessment of your risk of re-offending as low, your continued family support, your age and your remorse.
34Mr Blake accepted that this was serious offending involving a grave breach of trust. He acknowledged the only appropriate sentence was a term of imprisonment.
35He referred me to the case of Traeger[5] which he submitted was reflective of the objective sentencing range for offences committed within a period between 2006 and 2012 as offering some guidance as to sentencing practice.
[5] John Traeger (a pseudonym) v The Queen [2019] VSCA 231
36Ms Zammit on behalf of the Director submitted that your actions in licking the vagina of the victim are serious examples of the charge. She submitted that your offending involved a grave breach of trust. Moreover, she submitted that you were aware that the victim was in foster care because she had already been the victim of sexual abuse and this is a further aggravating feature of your offending.
37Ms Zammit submitted s5AA of the Sentencing Act applied here in that you were able to offend because of your good character. You would not have been able to be a foster parent unless you were regarded as a person of good character. The defence did not dispute this submission. In these circumstances the Court must not have regard to your previous good character and lack of a criminal history.
38Ms Zammit did not dispute the relevance of your early plea, your age and ill health to the sentence I impose. She did not dispute that Verdins principles 5 and 6 were engaged in sentencing you.
39She referred me to the Sentencing Snapshot dated June 2009 for the offence of indecent act with a child under 16 as of some albeit limited assistance in sentencing you.
40She submitted the only appropriate sentence was a custodial sentence consisting of a head sentence and a non-parole period.
41I turn now to my own assessment of the objective gravity of your offending and your moral culpability.
42Your 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.
43The sentencing principles of general and specific deterrence, and denunciation are all engaged in sentencing you.
44I must denounce your conduct on behalf of the community and the message must be sent by the sentence I impose that the Courts will not tolerate the sexual abuse of children. You must also understand that your behaviour was disgraceful, and you must never behave in this way again.
45Having said that I accept that given your age and the conclusions of Dr Barth that your risk of reoffending is low.
46I 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.
47However, I accept the prosecution submission, that your prior good character was a factor which enabled you to offend and therefore I disregard it in the sentence I will impose.
48You are 74. This will be your first time in custody. I take into account that the sentence I impose may involve some of the last years of your life. I consider your physical ailments will give you some difficulty in custody. I accept based on Dr Barth's conclusions that Verdins limbs 5 and 6 are engaged in sentencing you and I give these considerations some modest weight in the sentence I will impose. I take into account that in custody you will worry about your wife and your son's situation.
49I take into account your early plea of guilty, and I sentence you in accordance with the principles in the case of Worboyes[6]. I accept the defence submission that your plea in conjunction with your admissions on other occasions is indicative of remorse on your part.
[6] Worboyes v The Queen [2021] VSCA 169 (“Worboyes”)
50Having regard to all the matters I am required to under the Sentencing Act and matters personal to you on, I intend to sentence you as follows. Please stand up now, Mr Benson.
51On Charge 1 you are convicted and sentenced to 3 years' imprisonment. I direct that you serve a non-parole period of 1 year and 10 months.
52You are a registered sex offender for 8 years.
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