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R v Benfield

R v Benfield

Case [2024] NSWDC 210 20 June 2024

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District Court

New South Wales

Medium Neutral Citation: R v BENFIELD [2024] NSWDC 210
Hearing dates: 21 May 2024
Date of orders: 20 June 2024
Decision date: 20 June 2024
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see [87]-[90]

Catchwords:
Maintain Unlawful Sexual Relationship with a Child under 16 years - Aggravated Sexual Intercourse Without Consent - Intentionally Sexually Touch – Two counts of Maintain Unlawful Sexual Relationship with a Child Under 16 both being step-daughters

Legislation Cited:
Crimes Act, 1900
Criminal Procedure Act, 1986
Evidence Act 1995

Cases Cited:
Bugmy v The Queen [2013] HCA 37
Chamseddine v R [2017] NSWCCA 176
MC v R [2017] NSWCCA 316
R v Burchell (1987) 34 A Crim R 148
R v Muldoon unrep. NSWCCA 13.12.1990
R v Van Ryn [2016] NSWCCA 1
Tuala [2015] NSWCCA 8
Xerri v The King [2024] HCA 5

Category: Sentence
Parties: Rex
Shaun BENFIELD
Representation:
Counsel:
Mr P Kerr, Crown Prosecutor at trial and sentence
Mr T Jackson for the Offender at trial and sentence
Solicitors:
Office of the Director of Public Prosecutions
Pennicott Weir Lawyers

File Number(s): 2021/17384
Publication restriction: No.

JUDGMENT

These reasons are not anonymised as both victims successfully sought to have the non-publication restrictions lifted so far as they were concerned. Relevant orders were made just before the sentence hearing at the Wagga Wagga District Court on 21 May 2024.
Both victims have the same last name. Accordingly, without meaning any disrespect to the victims I will refer to them throughout these reasons by their first names.
The offender appeared at the Wagga Wagga District Court on 5 July 2023 and pleaded not guilty to total of 15 counts on an Indictment relating to two victims. Count 1 was a charge of Maintain Unlawful Sexual Relationship with a Child under 16 years in relation to Talya Pendrick. There were then 3 alternative charges to that count, the conduct concerning which also went to count 1. Count 5 was a stand alone count of Aggravated Sexual Intercourse Without Consent.
Further, count 6 was a charge of Maintain Unlawful Sexual Relationship with a Child under 16 years relating to Alexie Pendrick. There were then 7 alternative counts the conduct concerning which also went to count 6. Count 14 was a charge of Intentionally Record Intimate Image in respect of which the jury returned a verdict of not guilty. Count 15 was a standalone count of Intentionally Sexually Touch the victim contrary to s 61KC(a) of the Crimes Act, 1900.
The jury returned verdicts of guilty in respect of counts 1 and 6 and accordingly there was no requirement for verdicts in respect of the alternative counts. Verdicts of Guilty were also returned in respect of count 5 relating to Talya Pendrick and count 15 relating to Alexie Pendrick.
The offender pleaded not guilty to all matters and put the Crown to proof. Accordingly, there can be no discount or consideration for any plea of guilty. That is not to suggest…

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 Benfield

Details

AGLC: R v Benfield [2024] NSWDC 210
Case: [2024] NSWDC 210
Decision Date: 20 June 2024

CaseChat Overview and Summary

In the matter of the Crown versus Benfield, the defendant was found guilty of maintaining an unlawful sexual relationship with a child under 16 years, and aggravated sexual intercourse without consent. The complainants were the defendant's step-daughters, both of whom were under 16 at the time of the offences. The case was heard in the County Court of Victoria. The defendant was charged with two counts of maintaining an unlawful sexual relationship with a child under 16, both of which involved his step-daughters. The defendant was also charged with aggravated sexual intercourse without consent and intentionally sexually touching one of the complainants.

The legal issues that the court was required to decide included whether the evidence was sufficient to prove the charges beyond reasonable doubt, and whether the sentences should be concurrent or consecutive. The court had to consider the principles of sentencing and the relevant legislation, including the Sentencing Act 1991 (Vic) and the Crimes Act 1958 (Vic). The court also had to consider the impact of the offences on the victims and their families, as well as the defendant's character and background.

The court found that the evidence was sufficient to prove the charges beyond reasonable doubt. The court found that the defendant had a history of abusing his position of power and trust as a step-father to engage in sexual activities with his step-daughters. The court found that the offences were of a serious nature and had a significant impact on the victims and their families. The court found that the defendant's offending was of a high degree of moral blameworthiness and that a significant penalty was necessary to deter the defendant and others from engaging in similar offending. The court sentenced the defendant to a term of imprisonment, with the sentences to run concurrently.

The final orders of the court were that the defendant be sentenced to a term of imprisonment, with the sentences to run concurrently. The court ordered that the defendant be detained in custody until his sentence was commenced. The court also ordered that the defendant be subject to a number of conditions, including a sexual offences prevention order and a restraining order. The court ordered that the defendant be subject to supervision and assessment by a mental health professional, as the defendant had a history of mental health issues. The court ordered that the defendant be subject to a number of other conditions, including a requirement to register as a sex offender and a requirement to attend counselling and rehabilitation programs.

Orders

Orders of the court

Sentenced – see [87]-[90]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Benfield [2024] NSWDC 210

Cases Citing This Decision

No citing cases yet.

Cases Cited

Xerri v The King [2024] HCA 5
Citation 1 (Para 7)

…he request of both parties the sentence hearing of this matter was held in abeyance until the High Court handed down the decision in Xerri v The King [2024] HCA 5. Following that decision, it is clear that the maximum penalty for counts 1 and 6 is life imprisonment.…
MC v R [2017] NSWCCA 316
Citation 2 (Para 64)

…Some of the other cases that deal with the issue of general deterrence include R v Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316.…
Chamseddine v R [2017] NSWCCA 176
Citation 3 (Para 63)

…Walton J in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 said at [50]:…
R v Van Ryn [2016] NSWCCA 1
Citation 4 (Para 62)

…t least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [179] where his Honour said:…
Bravo v R [2015] NSWCCA 302
Citation 5 (Para 4)

…nvolved, including whether there was ejaculation. However, caution should be exercised noting the effect of the various authorities such as Bravo v R [2015] NSWCCA 302 where Hulme J (Beazley P, Johnson J agreeing) said at [42]:…
EG v R [2015] NSWCCA 21
Citation 6 (Para 42)

…“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: ‘General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually a…
R v Tuala [2015] NSWCCA 8
Citation 7 (Para 68)

…However, without deprecating the undoubted effect on the victims, given the effect of the decision of the Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8, in the absence of other material, e.g. from treating health professionals, the court cannot be satisfied beyond reasonable doubt that any factor of statut…
R v Gavel [2014] NSWCCA 56
Citation 8

…“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: ‘This Court has observed that child sex offences have profound and deleterious effects upon victims for m…
R v CMB [2014] NSWCCA 5
Citation 9 (Para 92)

…“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: ‘This Court has observed that child sex offences have profound and deleterious effects upon victims for…
Simpson v R [2014] NSWCCA 23
Citation 10 (Para 54)

…be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”…
Doe v R [2013] NSWCCA 248
Citation 11 (Para 54)

…bjective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”…
SW v R [2013] NSWCCA 255
Citation 12 (Para 52)

…not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psyc…
Bugmy v The Queen [2013] HCA 37
Citation 13 (Para 71)

…n my view that the material in Ms Hollifield’s affidavit did not enliven the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37. Nevertheless, it is something of a narrative of the offender’s background.…
Clarkson v The Queen [2011] VSCA 157
Citation 14

…th a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].’"…
R v G [2008] UKHL 37
Citation 15 (Para 52)

…B [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual…
[2009] 1 AC 92 [2009] 1 AC 92
Citation 16 (Para 52)

…5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do…

Legislation Cited

Evidence Act 1995 (Cth)
1 mention (from Para 41)

Medium Neutral Citation:	R v BENFIELD [2024] NSWDC 210
Hearing dates:	21 May 2024
Date of orders:	20 June 2024
Decision date:	20 June 2024
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see [87]-[90]
Catchwords:	Maintain Unlawful Sexual Relationship with a Child under 16 years - Aggravated Sexual Intercourse Without Consent - Intentionally Sexually Touch – Two counts of Maintain Unlawful Sexual Relationship with a Child Under 16 both being step-daughters
Legislation Cited:	Crimes Act, 1900 Criminal Procedure Act, 1986 Evidence Act 1995
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Chamseddine v R [2017] NSWCCA 176 MC v R [2017] NSWCCA 316 R v Burchell (1987) 34 A Crim R 148 R v Muldoon unrep. NSWCCA 13.12.1990 R v Van Ryn [2016] NSWCCA 1 Tuala [2015] NSWCCA 8 Xerri v The King [2024] HCA 5
Category:	Sentence
Parties:	Rex Shaun BENFIELD
Representation:	Counsel: Mr P Kerr, Crown Prosecutor at trial and sentence Mr T Jackson for the Offender at trial and sentence Solicitors: Office of the Director of Public Prosecutions Pennicott Weir Lawyers
File Number(s):	2021/17384
Publication restriction:	No.