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Criminal Law Consolidation Act 1935 (SA) s 49(3), s 50, s 56, s 74 (repealed), s 270A; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.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 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.
The third offence occurred between 1 October 1999 and 30 September 2000. It occurred when Mr Bennett placed his erect penis against the second victim’s bottom while they shared the same bed.
The fourth offence occurred between 1 October 2000 and 30 September 2002 and was similar in nature to the third offence.
The fifth offence occurred between 1 October 2000 and 30 September 2002. It involved Mr Bennett masturbating the second victim whilst he was touching his testicles and while the second victim was touching Mr Bennett’s testicles.
The sixth offence occurred between 1 August 2001 and 29 September 2001. It arose when, during the course of massaging the second victim, Mr Bennett rubbed the second victim’s penis.
The seventh offence occurred between 1 October 1999 and 30 September 2002. Mr Bennett and the victim were in the shower together, and Mr Bennett grasped the victim by the penis and testicles.
The eighth offence occurred between 1 June 2001 and 20 April 2003. It occurred when Mr Bennett placed his mouth around the second victim’s penis, and held it there for a short time.
The ninth offence occurred between 1 June 2001 and 20 April 2003. Mr Bennett asked the second victim to put his mouth on Mr Bennett’s penis. The second victim briefly performed an act of fellatio on Mr Bennett.
The tenth and eleventh offences related to the third victim. The tenth offence occurred between 1 October 2005 and 31 October 2006. It arose when, during the course of massaging the third victim, Mr Bennett put his mouth around the victim’s penis and bit the shaft of the victim’s penis.
The eleventh offence occurred between 1 May 2006 and 31 July 2006. It arose when, during the course of massaging the third victim, Mr Bennett placed his finger into the third victim’s bottom.
At the time of sentencing, Mr Bennett was 37 years of age. The Judge noted that he had a relatively normal childhood until the age of 13 when his parents separated. It is apparent that this event had some effect on Mr Bennett. It is also apparent that his father’s extensive and prolonged battle with cancer had a significant effect on Mr Bennett. The report of Mr Fugler discloses that Mr Bennett suffered considerable distress as a result of his father’s illness.
The Judge stated that during his twenties Mr Bennett significantly increased his alcohol consumption and began to smoke cannabis. Mr Bennett also began using methylamphetamine and ecstasy, although the Judge noted he did not take these substances as frequently as he smoked cannabis.
While he refused to accept these issues as a “trigger” for the offending conduct, the Judge accepted that Mr Bennett’s life was somewhat “out of control” during the time of his offending in that he was drinking and using illicit substances while coping with the illness and eventual death of his father.
The Judge’s Sentencing Remarks
The Judge summarised the facts. No criticism of his summary of the facts is made by the Director.
The Judge noted that Mr Bennett was in a position of trust in relation to both the victims and their parents. He described Mr Bennett’s conduct as “predatory”, and designed to satisfy Mr Bennett’s sexual desires. He noted that Mr Bennett’s conduct was “persistent and involved a breach of trust with multiple victims”. The Judge took into account the fact that the offending conduct occurred over an extended period of time and that it involved three victims. While he noted that Mr Bennett came before him with no prior convictions, the Judge gave this little weight in light of the continuing nature of the offending.
It is also evident that the Judge appreciated the impact of Mr Bennett’s conduct on the victims and their families. He noted that it was unfortunate that Mr Bennett had used the positive traits of his personality, his charisma and the fact that he was a good coach and strong disciplinarian, to deceive and manipulate the victims and their families. He described the effect of Mr Bennett’s conduct on the first victim as “harrowing”, and he noted in relation to all three victims that the offending conduct “robbed the victims of their innocence, of their youth, their hopes and their dreams of competing at an elite level...”. Each of them was an elite sportsman. The first two victims believed that the offending, and its adverse effects on them, had robbed them of a sporting career at an elite level. The parents of the first two victims have suffered grievously as well. They see the impact on their sons of the offending, and are tortured by thoughts about what they might have done to prevent what happened.
No victim impact statements were provided in relation to the third victim.
Uncharged acts were led in relation to the second and third victims. However, the Judge made it clear that he was sentencing Mr Bennett only for the charged acts that were established beyond reasonable doubt.
Although the convictions were recorded after a trial, the Judge placed some weight on the fact that Mr Bennett ultimately made a full and public confession of what had occurred, and that he had expressed deep contrition and remorse to the victims and their families for what he had done, in assessing Mr Bennett’s prospects of rehabilitation. He considered that this was a case where there was some prospects for rehabilitation.
The Judge considered the importance of deterrence in the sentencing process. He noted that general deterrence and the protection of children is important. He also noted that personal deterrence was relevant in this case. However, the Director submits that while the Judge mentions these matters, the resulting sentence indicates that he did not properly consider them in reaching the sentence imposed.
The Judge used s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose one sentence of nine years imprisonment for all of the offending.
Submissions on Appeal
The Director submits that permission to appeal should be granted in order to “correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained”: R v Payne (2004) 89 SASR 49 at 70. Counsel for the Director submits that the sentence imposed by the Judge for substantial offending of a sexual nature against multiple victims discloses an inadequacy of such proportions that, by allowing the sentence to stand, the standard of penalty imposed for such offences would be impaired and public confidence in the administration of justice would be eroded.
The Director submits that the starting point for offences of this type against a single victim involving a course of conduct is ten years imprisonment. He refers to my judgment in R v D (1997) 69 SASR 413 in support of his submission. He points to a number of aspects of the offending conduct, and submits that in light of these facts and my comments in R v D at 423-424 the Judge erred in not imposing a higher sentence.
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.
In D I indicated that in the category of offending under consideration, when the child in question was more than 12 years of age, an appropriate starting point would be a head sentence of about ten years’ imprisonment.
In R v AJW [2001] SASC 308; (2001) 80 SASR 246 I reaffirmed what I had said in D, and confirmed that what I said there applied to offences of sexual abuse involving young children, apart from then s 74. The other members of the Court agreed with me: Prior J and Nyland J at 251. I went on to say at [33]-[34]:
[33]This is offending of a kind in which the circumstances of the offences and of the offender are very variable, despite the constant underlying feature of the abuse of young vulnerable children by an adult for the purposes of sexual gratification. For that reason, the approach to sentencing indicated by me in R v D was necessarily hedged with a number of qualifications.
[34]Despite all that, the interests of society and the protection of children require this Court to maintain adequate standards of punishment for offending of this kind. It is clearly a deep-seated problem in our society, and it is equally clear that offenders, usually men, are continuing to exploit children for their own gratification. The Court must keep an eye on the need to deter such persons if possible.
These observations do not fix a sentence for cases like this. Each case is to be considered on its own facts. But my observations do indicate a general approach or standard that a sentencing judge should bear in mind.
In the present case, a heavier sentence than that imposed was called for. It was called for in particular because of the involvement of three separate victims, and because of the prolonged and predatory nature of the offending. The offending against the second victim alone could attract a sentence in the order of ten years’ imprisonment, and certainly warranted the sentence of nine years imposed by the Judge. In my respectful opinion, the Judge’s conclusion indicates that he has failed to have adequate regard to the involvement of three separate victims and three separate sets of offending.

I consider that, in this case, the sentence of about 15 years’ imprisonment was appropriate. Something more or less than that could not be said to be erroneous, but in my opinion the sentence of less than 12 years’ imprisonment could not be supported. Accordingly, in my respectful opinion the Judge has erred, and the sentence that he has imposed does not reflect an adequate standard of sentencing.
The sentence imposed would tend to erode the appropriate standard of sentence. It would invite an inappropriately low level of sentencing for offending of this kind involving a single victim. Permission to appeal should be granted to enable the Court to maintain a proper standard of punishment.
It does not follow that the appeal must be allowed. But in my opinion it is not enough to identify the error and to leave the sentence stand. There is a public interest in an appropriate sentence being imposed. The offending is very serious. The guidance given by the decisions in D and AJW was available, and should have been applied.
Accordingly, in my opinion the Court should allow the appeal, set aside the sentence and resentence Mr Bennett.
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.