R v Bennett - [2010] SASC 166

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BENNETT
[2010] SASC 166
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kourakis)
3 June 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
DPP application for permission to appeal against sentence - respondent convicted of six counts of indecent assault, one count of attempted indecent assault, and four counts of unlawful sexual intercourse - respondent sentenced to nine years imprisonment with a non-parole period of four years and six months - whether sentence manifestly inadequate - whether sentence erodes standard of penalty imposed for such offences and impairs public confidence in administration of justice.
HELD: permission to appeal granted to maintain proper standard of punishment - offending very serious - heavier sentence called for because offending had three separate victims and was prolonged and predatory in nature - considerations of punishment and deterrence -appeal allowed - respondent resentenced to twelve years imprisonment with a non-parole period of seven years.
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 50, s 56, s 74 (repealed), s 270A; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v D (1997) 69 SASR 413; R v AJW (2001) 80 SASR 246, discussed.
R v Payne (2004) 89 SASR 49, considered.

R v BENNETT
[2010] SASC 166
Full Court: Doyle CJ, White and Kourakis JJ

DOYLE CJ: This is an application by the Director of Public Prosecutions for permission to appeal against a sentence imposed by the District Court.
On 19 October 2009 Mr Bennett was convicted of six counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), one count of attempted indecent assault contrary to ss 56 and 270A of the CLCA, and four counts of unlawful sexual intercourse contrary to s 49(3) of the CLCA. At the relevant time indecent assault attracted a maximum penalty of imprisonment for eight years, attempted indecent assault attracted a maximum penalty of imprisonment for five years and four months, and unlawful sexual intercourse attracted a maximum penalty of imprisonment for seven years.
The convictions were recorded after a trial before a judge sitting without a jury.
On 29 March 2010 the Judge imposed a single sentence of imprisonment for nine years. The Judge fixed a non-parole period of four years six months. The Judge directed that the sentence and non-parole period commence on 16 March 2010, the day when Mr Bennett was taken into custody.
The Director argues that the sentence imposed by the Judge is manifestly inadequate. The Director submits that the…

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 Bennett

Details

AGLC: R v Bennett [2010] SASC 166
Case: [2010] SASC 166
Decision Date: 3 June 2010

CaseChat Overview and Summary

The case of R v Bennett involves an appeal against sentence by the Director, the public prosecutor, who argues that the sentence imposed by the trial judge is manifestly inadequate. The appellant, Mr Bennett, was a coach for a sporting team comprising boys under 16 years of age. He was found guilty of multiple offences of indecent assault and unlawful sexual intercourse committed against three victims who were members of his team. The Director submits that the sentence imposed fails to reflect the seriousness of the offending, the need for personal and general deterrence, and adequate punishment for such offences. The Director contends that the sentence is so inadequate that it would erode the standards of penalty for these offences and impair public confidence in the administration of justice.

The legal issues in this case revolve around the adequacy of the sentence imposed by the trial judge and whether it should be set aside and replaced by a sentence determined by the appellate court. The Director argues that the sentence imposed is manifestly inadequate and that the appellate court should intervene to ensure that the punishment reflects the gravity of the offences and serves the purposes of punishment and deterrence. The Court must consider the nature and circumstances of the offending, the harm caused to the victims, and the need to maintain public confidence in the criminal justice system.

In its judgment, the Court agreed with the Director that the sentence imposed by the trial judge was inadequate. The Court considered the lengthy period over which the offending occurred, the predatory nature of Mr Bennett's conduct, and the harm caused to the victims and their families. The Court emphasised the importance of punishment and deterrence in cases involving sexual offences committed by a person in a position of trust and authority. The Court noted that such offences cause serious harm and have an insidious effect on the community, leading to a loss of trust in those who are responsible for the care and guidance of children. The Court held that the sentence imposed did not adequately reflect the seriousness of the offending and the need for deterrence. Consequently, the Court granted the Director's appeal, set aside the sentence imposed by the trial judge, and imposed a sentence of 12 years' imprisonment with a non-parole period of seven years.

Orders

Orders of the court

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Background

Background to the litigation

The Director argues that the sentence imposed by the Judge is manifestly inadequate. The Director submits that the sentence discloses an error of principle in that the sentence imposed by the Judge fails to reflect the seriousness of the criminal conduct, fails to reflect the need for personal and general deterrence, and fails to provide, establish or maintain adequate levels of punishment for offences of this nature. The Director submits that permission to appeal should be granted because the sentence imposed discloses an inadequacy of such proportions that if it were allowed to stand it would erode the standards of penalty imposed for such offences and would impair public confidence in the administration of justice. In short, the Director submits that the circumstances of this case call for the intervention of the Court. Background Mr Bennett coached a sporting team for a number of years. The team comprised boys under 16 years of age. He established a pattern of sleepovers at his home, where the team stayed together for bonding purposes. Usually Mr Bennett was the only adult present during these sleepovers. Most of the offences were committed at his home. The Judge found that these sleepovers had a “sinister purpose”. He found that during the course of some of these sleepovers pornography was shown to the boys. He found that the sleepovers were used by Mr Bennett to get closer to the team members in general as well as to the ultimate victims of his offending. The Judge found that Mr Bennett was trusted by most of the parents of boys playing in his team. He found that Mr Bennett used his position as coach as an excuse to spend time with each victim “one on one”, and that he became a very close friend of the families of the first and second victims. Clearly, Mr Bennett was in a position of trust and responsibility, and he was trusted by parents including the parents of the first two victims. The offending conduct related to three different victims who were each over the age of twelve years at the time each offence was committed. They were aged between 13 and 15, 13 and 16, and 14 and 15 respectively at the time of the offending. Each of the three victims was a member of the team that Mr Bennett coached. In the summary that follows, the first seven offences are offences of indecent assault or attempted indecent assault. The eighth, ninth, tenth and eleventh offences are offences of unlawful sexual intercourse. The first two offences related to the first victim. The first offence occurred between 1 September 1998 and 30 September 2000 at a sleepover conducted by Mr Bennett at his house. The victim was woken by Mr Bennett placing his hand on the victim’s penis, and then Mr Bennett masturbated himself. The second offence also occurred between 1 September 1998 and 30 September 2000. It was an attempted indecent assault at the victim’s parents’ house in somewhat similar circumstances to the first offence. The third, fourth, fifth, sixth, seventh, eight and ninth offences related to the second victim. The second victim used to stay over at Mr Bennett’s house by himself, and would often sleep in his bed. Initially the second victim was clothed when he slept in Mr Bennett’s bed. However, things progressed to the point where neither the second victim nor Mr Bennett was clothed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would impose a sentence of 12 years’ imprisonment. As I have indicated, that is the lowest level of sentencing that could be considered appropriate. The Judge fixed a non-parole period that was one half of the head sentence. I consider that something more than that was required, bearing in mind the need for the non-parole period to reflect considerations of punishment and deterrence. I would fix a non-parole period of seven years.Conclusion I would grant permission to the Director to appeal. I would allow the appeal. I would set aside the sentence imposed by the District Court. Exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) I would impose a sentence of 12 years’ imprisonment, and fix a non-parole period of seven years. The head sentence and the non-parole period should commence from 16 March 2010, when Mr Bennett was taken into custody. WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons. KOURAKIS J: I also agree with the orders proposed by the Chief Justice and with his reasons.

Ratio Decidendi

Legal Principle Established

Counsel for Mr Bennett correctly submits that my comments in R v D should not be taken as a precise figure: see R v D at 424. He argues that no error can be demonstrated by the Director in respect of the sentence imposed by the Judge. He submits that the Judge correctly identified the impact of Mr Bennett’s conduct on the victims and their families, and that he acknowledged the seriousness of the offending conduct. He submits that the sentence imposed was one that was within the relevant range for offences of this nature, and that the non-parole period, while merciful, was not inadequate in light of the Judge’s views as to Mr Bennett’s prospects for rehabilitation. Consideration of submissions There are aspects of the offences that call for comment. They are the lengthy period over which the offending occurred, the fact that at one stage club officials warned Mr Bennett not to have sleepovers at his home unless another adult was present, the fact that three victims were involved and the predatory nature of Mr Bennett’s conduct, coupled with the harm to the victims and their families. There is little by way of mitigation apart from Mr Bennett’s acknowledgement of guilt after the verdict, and the circumstance that his prospects of rehabilitation are reasonable. I agree with the submission by Mr Healy for Mr Bennett that there is no apparent error in the Judge’s sentencing remarks. The Judge has referred to the relevant matters, and appears to have given them appropriate weight. But in my opinion the offending called for a heavier sentence than that imposed by the Judge. In R v D (1997) 69 SASR 413 I considered the approach to sentencing in cases involving a course of conduct including unlawful sexual intercourse with a child committed by a person in a position of trust and authority. Referring to such cases I said at 423:It is not necessary to repeat what the court has said so often in the past about such offences. I merely add this. They are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this. Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts. While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.It appears that the sexual abuse of children by persons in a position of trust is quite widespread. It may not be occurring more often than it did in the past. It may well be that it is now being detected more often than it was. Be that as it may, the offences that are involved come before the courts with disturbing frequency. …Bleby J agreed with my approach at 429. The Court was there dealing with offences against then s 74 of the CLCA, the offence of persistent sexual abuse of a child. The provisions of the section are set out in D at 417-418. This section has now been repealed, and replaced by s 50, expressed in somewhat different terms. Be that as it may, what I said in D in relation to s 74 is applicable to cases in which the conduct is charged, as here, as offences of indecent assault and offences of unlawful sexual intercourse.