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District Court 20 June 2024

R v BENFIELD

[2024] NSWDC 210

Sexual offences
INTENTIONALLY SEXUALLY TOUCH DAUGHTERS

Citation: R v Benfield [2024] NSWDC 210
Court: District Court of New South Wales
Date: 20 June 2024
Judge: Lerve DCJ

Background

The offender was the stepfather of two sisters, Talya and Alexie Pendrick, having entered their mother's life in 2004 and moved into the family home in 2005. The blended family resided together in various Wagga Wagga suburbs until December 2020, though Talya moved out of the home around 2013. Both victims successfully applied to have non-publication restrictions lifted, and the court accordingly did not anonymise its reasons.

The offender faced a 15-count indictment relating to both sisters. After a jury trial at Wagga Wagga District Court, verdicts of guilty were returned on four counts: maintaining unlawful sexual relationships with each sister (counts 1 and 6), aggravated sexual intercourse without consent involving Talya (count 5), and intentionally sexually touching Alexie (count 15). The jury acquitted the offender of intentionally recording an intimate image (count 14). Alternative counts to counts 1 and 6 required no separate jury verdicts once the principal counts were proven.

The offender pleaded not guilty to all charges and contested the matter at trial, meaning no discount for a guilty plea was available at sentencing.

Legal Issues

  • What was the maximum penalty applicable to the maintaining unlawful sexual relationship counts (counts 1 and 6) following the High Court decision in Xerri v The King?
  • Whether the conduct alleged in count 4, involving the use of a knife, could be established beyond reasonable doubt for sentencing purposes, given significant discrepancies between the victims' accounts.
  • Where each count fell on the range of objective seriousness, taking into account the duration and frequency of offending, the nature of the sexual conduct, and the position of trust held by the offender.
  • Whether statutory aggravation of substantial harm to the victims was established to the requisite standard.
  • How the aggregate sentence should be structured, including the application of the totality principle.

Decision

Maximum penalty for counts 1 and 6: Following Xerri v The King [2024] HCA 5, the maximum penalty for the two maintaining unlawful sexual relationship offences is life imprisonment. No standard non-parole period applies to those offences. Count 5 carries a maximum of 20 years with a standard non-parole period of 10 years, while count 15 carries a maximum of 5 years with no standard non-parole period (at [7]-[9]).

Exclusion of count 4 from sentencing consideration: The defence submitted that the conduct alleged in count 4, in which Talya said a knife was held to her throat, could not be proven beyond reasonable doubt for sentencing purposes. Lerve DCJ agreed, finding that the differences between Talya's and Alexie's accounts of that incident were significant rather than minor, and that the evidence of the victims' mother, who said neither girl had spoken to her about the knives, was inconsistent with Alexie's account that Talya went directly to her mother after the incident. Despite entertaining "the gravest of suspicion," the court was not satisfied to the requisite standard and excluded that conduct from consideration under count 1. The court confirmed, however, that this did not invalidate count 1 itself (at [35]-[37]).

Objective seriousness of the offending: The relationship maintained with Talya (count 1) lasted approximately four years when she was aged between 11 and 14, involving very frequent sexual touching and digital penetration, multiple times per week. The court assessed that matter as within the mid-range but in the lower part of it, noting that a finding on count 4 would have increased the seriousness (at [53]-[54]). The relationship maintained with Alexie (count 6) spanned ten years, beginning when she was approximately five years old, and involved a wider range of sexual acts including fellatio, cunnilingus, attempted penile penetration, digital penetration, and ejaculation on the victim. That matter was assessed as above mid-range, though not significantly so (at [55]-[56]). Count 5, the standalone rape of Talya, was assessed as well within the mid-range, noting the aggravation arose from authority as stepfather (at [57]). Count 15 was assessed as within the mid-range at the upper end (at [58]).

Substantial harm and other sentencing considerations: The court declined to find statutory aggravation by way of substantial harm, in the absence of material from treating health professionals, following R v Tuala [2015] NSWCCA 8. Nevertheless, the effect on the victims remained relevant to the purposes of sentencing under s 3A(g) of the Crimes (Sentencing Procedure) Act (at [68]). The court found no evidence of remorse and declined to make findings that the offender was unlikely to re-offend or had good prospects of rehabilitation, given the absence of any psychological or sentencing assessment report (at [79]). General deterrence was identified as a strong sentencing consideration in cases of child sexual assault (at [62]). The offender's background, including an unhappy childhood with domestic violence in the home and a diagnosis of ADHD, was noted but did not enliven the Bugmy principles (at [71]).

Structure and quantum of sentence: The court determined that an aggregate sentence across all four counts was appropriate, which incorporated partial accumulation to reflect the offending against two separate victims over different periods. No finding of special circumstances was made. The aggregate sentence imposed was 20 years imprisonment with a non-parole period of 15 years, commencing 23 March 2023 (at [83]-[88]).

Orders Made

  • The offender was convicted on counts 1, 5, 6, and 15.
  • An aggregate sentence of 20 years imprisonment was imposed, with a non-parole period of 15 years.
  • The non-parole period commences 23 March 2023 and expires 22 March 2038.
  • The balance of term (5 years) commences 23 March 2038 and expires 22 March 2043.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.

Key Takeaways

  • Following Xerri v The King [2024] HCA 5, the maximum penalty for maintaining an unlawful sexual relationship with a child under 16 contrary to s 66EA(1) of the Crimes Act 1900 is life imprisonment, a point confirmed here as determinative of the sentencing framework applied (at [7]).

  • Where there are significant, irreconcilable discrepancies between witnesses' accounts of a specific act alleged as uncharged conduct or as an alternative count, the sentencing court cannot incorporate that conduct into its findings if it cannot be satisfied beyond reasonable doubt, even where suspicion is strong (at [35]-[36]).

  • The District Court confirmed that proof of statutory aggravation by way of substantial harm requires something more than the court drawing inferences from the nature of the offending alone: absent material such as evidence from treating health professionals, the aggravation cannot be established to the requisite standard, consistent with R v Tuala (at [68]).

  • General deterrence remains a strong sentencing principle in child sexual assault cases, particularly where offending occurs within a relationship of trust such as that of a stepparent (at [62]).

  • An offender's failure to plead guilty, while it does not increase the sentence imposed, precludes any discount or favourable consideration at the sentencing stage (at [6]).

Legislation and Cases Referenced

Legislation
- Crimes Act , 1900
- Criminal Procedure Act , 1986
- Evidence Act 1995

Cases
- 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