R v Benetto - [1997] QCA 433

IN THE COURT OF APPEAL	[1997] QCA 433
SUPREME COURT OF QUEENSLAND

C.A. No. 367 of 1997

Brisbane

[R. v. Benetto]

THE QUEEN

ERIC WILLIAM BENETTO

(Applicant) Appellant
Macrossan CJ
Thomas J
Helman J

Judgment delivered 2 December 1997
Judgment of the Court

APPLICATION GRANTED. APPEAL ALLOWED. EIGHT YEAR SENTENCES REPLACED BY SIX YEARS WITH RECOMMENDATION FOR CONSIDERATION OF PAROLE AFTER TWO AND A HALF YEARS. IN ALL OTHER RESPECTS THE SENTENCES, DIRECTIONS AND RECOMMENDATIONS REMAIN UNDISTURBED.

CATCHWORDS: CRIMINAL LAW - Indecent dealing - Applicant pleaded guilty to 58 counts of indecent dealing and related offences - Offences involved touching, rubbing, masturbation, showing of pornographic images, undressing and showering with children - No penetration, violence or threats - Applicant 59 years old - Past community service and unblemished record - Six children under 12 and two under 16 years old - Maximum penalty 10 years’ imprisonment - Whether sentence of 8 years’ imprisonment manifestly excessive - Sentencing practice on plea of guilty - Applicant cooperated with police and made many admissions - Sentencing Judge erroneously treating confession as “tempering” the effect of his plea of guilty - Observations on effect of multiple offences.

Trost (Unreported, Qld CA 386 of 1995, 13 November 1995)
Ezzy (Unreported, Qld CA 539 of 1994, 13 March 1995)

Counsel:	Mrs D. Richards for the Applicant/Appellant Mrs L. Clare for the Respondent
Solicitors:	Legal Aid Queensland for the Applicant/Appellant Director of Public Prosecutions (Queensland) for the Respondent
Hearing Date:	19 November 1997
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 2 December 1997

The applicant was convicted of multiple sexual offences against children. He pleaded guilty to 58 counts involving his dealing with eight children, six of whom were under 12 and two of whom were aged between 12 and 16. Most of the counts were of indecent dealing involving touching, and some involved other acts such as undressing in front of a child, and showing pornographic computer images. The actual offences were:

33 Counts of indecent dealing with a child under 12
10 Counts of procuring a child under 12 to commit an indecent act
2 Counts of permitting indecent dealing by a child under 12
5 Counts of exposing a child under 12 to an indecent act
1 Count of exposing a child under 16 to an indecent act
5 Counts of exposing a child under 12 to an indecent photograph
2 Counts of exposing a child under 16 to an indecent photograph

All except one of the offences were committed during 1995-1996. He was sentenced to eight years’ imprisonment on each of the offences involving children under the age of 12 (i.e. on 55 of the counts) and to four years’ imprisonment for the offences involving those under the age of 16. There was a recommendation that he be considered for release on parole after serving three years and six months.

The applicant is a 59 year old man. He has no previous convictions. He had worked as a fitter with Queensland…

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 R v Benetto

Details

AGLC: R v Benetto [1997] QCA 433
Case: [1997] QCA 433
Decision Date: 2/12/1997

CaseChat Overview and Summary

The case involves Eric William Benetto, who appealed against his conviction and sentence for multiple sexual offences against children. The appellant pleaded guilty to 58 counts of indecent dealing and related offences, involving eight children, six of whom were under 12 years old and two were aged between 12 and 16. The offences included touching, rubbing, masturbation, showing pornographic images, undressing, and showering with the children. The appellant was sentenced to eight years' imprisonment on each of the offences involving children under the age of 12 and four years for the offences involving those under the age of 16. The Court of Appeal was tasked with determining whether the sentence was manifestly excessive and if there were any errors in the sentencing process.

The primary legal issues were whether the sentence of eight years' imprisonment was manifestly excessive and if the sentencing judge erred in considering the appellant's early admissions to the police as undermining the benefit of his plea of guilty. The Court had to balance the severity of the offences against the mitigating factors such as the appellant's cooperation with the police, his early admissions, his past community service, and his unblemished record.

The Court found that the sentencing judge erred in treating the appellant's pleas of guilty as being tempered by his early admissions to the police. The Court emphasised that early admissions should not undermine the benefit of a plea of guilty, as they indicate cooperation from the outset. Additionally, the Court considered the sentences to be manifestly excessive given the circumstances. While the number of offences and the number of complainants warranted a high sentence, the Court found that the offences were not at the more severe end of the spectrum and that the appellant's cooperation with the police and his unblemished record warranted some mitigation. The Court concluded that the appropriate sentence range should have been between five to seven years, with a recommendation for parole consideration after two and a half years.

In conclusion, the Court allowed the appeal, reducing the sentences from eight years to six years with a recommendation for parole after two and a half years. The Court decided that in all other respects, the sentences, directions, and recommendations of the sentencing judge should remain undisturbed.

Orders