R v BENFIELD

Facts

1. The Crown Prosecutor at the sentence hearing submitted that the verdicts of the jury accord with the Crown case. With the possible exception of count 4, which was one of the alternatives to count 1, I agree with that submission. There is a factual dispute in relation to that count which I will deal with the course of dealing with the facts. Fortunately, however, there was not a great deal of dispute between the parties so far as the facts are concerned.
2. Apart from the specific incidents charged as alternative counts to counts 1 and 6 there was a deal of evidence relating to uncharged conduct.
3. What follows in this paragraph is essentially drawn from the agreed facts that were exhibit A at the trial. By way of background the two victims are sisters with Talya being born on 26 July 1994 and Alexie being born on 3 November 2000. Their mother, Heidi Benfield, met the offender in 2004 and they commenced a de facto relationship in 2005. They married approximately two years later. The offender and Heidi Benfield, together with children from their other relationships and the two victims, resided as a blended family unit from 2005 until December 2020. However, Talya moved out of the family home in about 2013. All of the offending occurred in various suburbs of Wagga Wagga.

Offending against Talya

1. I will initially go to the offending involving Talya. From March 2006 until January 2009 the family lived in Waratah Street Kooringal. Initially Talya shared a room with siblings however she later moved to the opposite end of the house into a converted garage, which was connected to the house via the kitchen. The garage door was apparently disabled. Talya was the only occupant of the converted garage. The offender went to the bedroom multiple times per week and touched Talya on the vagina after removing her pyjama pants. There were other times he would engage in acts of digital penetration.
2. There was one specific occasion Talya can remember (Counts 1 and 3) where she woke to find the accused sitting at the end of the bed and the covers being pulled back. The offender rubbed the victim's legs, pulled her pants down and put his fingers inside her vagina.
3. Talya went on to give evidence of a specific occasion (Count 2) of the offender coming into the bedroom in the converted garage and rubbing her vagina on the outside. She said that it started with him rubbing her legs and then he would move his hand up and rub both on the outside and inside of her pants.
4. Further, in respect of the uncharged conduct Talya was asked (p.20:33) as to how frequently the offender touched her in the manner she described or engaged in digital penetration of her vagina. The victim replied that it happened "fairly regularly, multiple times per week".
5. From Waratah Street the family moved to Forrest Street in Lake Albert. At that address Talya shared a bedroom with Alexie. The bedding consisted of a bunkbed that had a double mattress on the bottom and a single mattress at the top. According to Talya she slept on the bottom and her sister on the top. Occasionally they would both sleep on the bottom bunk.
6. Talya recalls that there were multiple occasions that the offender came into the bedroom, but one occasion "jumps out" at her. She remembered waking up in the early morning. She woke to find a silver decorative knife held at her neck. Her sister was in the bed next to her and the offender told her sister to roll over and face the wall and be quiet. The offender then proceeded to pull off the victim's clothes, rubbed his hands all over her, inserted fingers into her vagina and pulled his penis out and rubbed it on the outside of her vagina. It is the act of digital penetration that specifically goes to count 4, which was one of the alternative charges to count 1. She estimated that the offender was in the room for 10 to 15 minutes. She was aware that her mother was at home in bed.
7. In respect of this incident the victim maintains that she told her mother of the incident and showed her the knife. The offender had a collection of knives that he had on display in the house.
8. The family lived for a time at one address in Brunskill Road and then for a time at another address in Brunskill Road, Lake Albert. Multiple things occurred at the second address however there was one particular incident that Talya distinctly remembers. The house was a two-story dwelling and the victim had her bedroom upstairs. Her mother was in the shower and the offender went to the victim's room. The victim was sitting on the bed. The offender walked around the side of the bed, held the victim down, told her that it didn't matter if she told her mother that her mother would not believe her. The offender took off the victim's clothes, pushed her on the bed and placed his penis inside her vagina. The victim was crying and holding onto her pillow at the time. This is the incident to which count 5, which is a standalone count relates. This is a standalone offence because Talya was over the age of 16 years when the offence was committed.
9. Talya also gave evidence (p 26:41 to p 27:10) that the offender would on a daily basis grab her on her bottom, her breasts and on the outside of clothing on her vagina.
10. Clearly, the specific counts on the indictment are matters of which the victim Talya has a specific recollection. Clearly, the offender engaged in improper sexual conduct on a very regular basis with her. Further, the specific counts on the indictment are not isolated incidents.

Dispute as to whether the conduct relied upon for count four is established beyond reasonable doubt

1. At the sentence hearing counsel for the offender made no submissions in respect of counts 1,2, 3 and 5. However Mr Jackson submitted that for the purpose of proceeding to sentence I could not be satisfied beyond reasonable doubt in respect of count 4, that is the incident on which the victim says a knife was held to her throat.
2. What I have included above at [18] is a summary of the victim's evidence in chief relating to count 4. Under cross-examination (p 40) victim said that she could not remember sleeping on the top bunk at Forrest Street. Little later (p 41) the victim said as far as she could recall that occurred on the bottom bunk. She also gave evidence that her sister Alexie usually slept on the top bunk (p 42).
3. Alexie in her evidence in chief (p 72) said that she remembered one occasion when the offender came into the room when she was in the room with her sister. She went on to say that they were asleep in the top bunk and he came in during the night with no clothes and holding a knife. She also gave evidence of the offender having a collection of knives which were on display in the lounge room. Alexie said that the offender said nothing to her and that the offender was in the room for a few minutes after she woke up.
4. Then, according to Alexie (p 74), her sister Talya did not stay in the room but went into her mother's room but came back to the room in which they were in. Further, Alexie thinks (p 74:45) that her mother spoke to the offender about being approached by Talya that night.
5. Under cross-examination Alexie confirmed that her bed was the top bunk and that she would never sleep on the bottom bunk. However, her sister may have slept with her in the top bunk. At p 103 she agreed with the proposition put by Mr Jackson that if she and her sister were in the bed at the same time it would be "pretty full", that you would not be able to get a third person in there, and it would be a "very tight squeeze." The evidence continued that her sister was closest to the wall and she (Alexie) was closest to the safety railing. She agreed (p 105) that she would have been closest to the offender at the time. She was not sure if the offender threatened her sister.
6. Heidi Benfield also gave evidence at the trial. She agreed (p 174) the accused had a collection of samurai swords and knives which were displayed in the built-in bookcase in the lounge room. She answered "no" to the question, "did Alexie or Talya ever talk about those knives to you?"
7. Reading that last question-and-answer in context in the transcript I am of the opinion that the only reasonable interpretation to be placed on the answer is that the girls did not talk to their mother about those knives.
8. Mr Jackson submitted that the difference in accounts between the two girls is not a minor difference of detail. There were differences as to whether they were on the top or the bottom bunk. The submissions continued that the offender is quite a large man. Having observed the offender at trial and at the sentence hearing that is certainly the case.
9. The Crown submitted that the court would know from experience that it is not uncommon for there to be differences in accounts of sexual assaults. In that regard I remind myself and direct myself in terms of s 293A of the Criminal Procedure Act, 1986. The Crown also submitted that the versions given by the two victims were given many years later in the context of the history of ongoing abuse and trauma. Crown disputed that the differences were significant.
10. Further, the Crown submitted that it was unfair to "nitpick" over variances of traumatic events. The Crown then submitted that I should take a global view of the evidence of the victims' interviews and the evidence relating to count 4 in the context of the evidence of the victims as a whole.
11. Counsel for the offender submitted in reply that in determining the facts for the purpose of proceeding to sentence I cannot take the global approach urged upon me by the Crown.
12. Day in and day out juries are directed that suspicion, even the gravest of suspicion cannot be a substitute for proof beyond reasonable doubt. Likewise, juries are also directed that beyond reasonable doubt is the highest standard of proof known to the law.
13. I agree with the submissions of counsel for the offender that the variances or differences between the accounts of the two sisters are significant so far as this count is concerned; they are not minor differences. There is also the evidence of Heidi Benfield that neither of the girls spoke to her about the knives. This is significant in the context of the evidence given by Alexie that her sister spoke to her mother immediately after the incident.
14. In these circumstances, given what I regard to be significant variations on the accounts of the two sisters and the evidence of Alexie to which I referred in the paragraph immediately above whilst I entertain the gravest of suspicion, I cannot be satisfied to the very high standard of beyond reasonable doubt of the conduct alleged in respect of count 4. I will therefore exclude that from my considerations so far as count 1 is concerned.
15. However, as Mr Jackson correctly submitted at the sentence hearing, such a finding does not mean that count 1 is invalidated in any way.

Offending against Alexie

1. Alexie remembers that she was about four when the offender moved into the family home in Kooringal. On about three occasions she was in the bedroom occupied by the offender and her mother when the offender was watching pornography on the television in the room. Alexie clearly describes the offender masturbating (page 66) whilst he was watching pornography. She goes on to describe the offender taking her hand and placing it on his penis. The offender then put his hands on Alexi's head, pulled it towards his penis and his penis went into Alexi's mouth.
2. The act of fellatio described in the latter part of the paragraph immediately above relates to count 7. The conduct of the offender putting the victim's hand on his penis relates to count 8.
3. When the family moved into the second house in Brunskill Road the conduct of the offender towards Alexie changed. He would go into her room more frequently sometimes in the late afternoon and sometimes at night. On occasions he was naked. On those occasions when he went into the room naked he would lay the victim on the floor, lay on top of her and rub his erect penis against the victim's vagina. Such conduct occurred two to three times per week for the time they were at that house. This is uncharged conduct going towards count six.
4. Counts 9 and 10 occurred when the family was living at Hampden Avenue, North Wagga Wagga. The sexual misconduct by the offender towards Alexie became more frequent. At trial the evidence in respect of count 10 was given before the evidence relating to count 9 and indeed the Crown had to make an application pursuant to s 32 of the Evidence Act 1995 before that evidence was given. I will go initially to count 9 then count 10.
5. On one occasion the offender went into Alexie's bedroom. He placed his head between her legs and licked her vagina. This relates to count nine on the indictment.
6. Going now to count 10 Alexie said that she wore pyjamas to bed. On the occasions the offender would come into her bedroom he would take off the pyjamas she was wearing. At p 78:15 she said that the offender, "tried to put his penis inside me". She said little later (p 79:05) that he never put his penis in her vagina. The victim prevented the offender putting his penis inside her vagina by trying to get away from him.
7. Count 11 relates to an act of digital penetration of which the victim gave very little detail. The evidence relating to this count only came out after the application pursuant to s 32 of the Evidence Act. The victim said that "he would place his fingers in my vagina". That occurred twice including the occasion to which count 11 relates.
8. As with count 11, there is very little detail relating to count 12. The evidence relating to that also was given after the application pursuant to s 32 of the Evidence Act. Count 12 is a charge of Aggravated Indecent Assault. The offender rubbed his penis against the breasts of the victim while the victim had no clothes on the top part of her body. Such conduct occurred two or three times.
9. Count 13 is also a charge of Aggravated Indecent Assault. The offender went into the victim's bedroom wearing no pants. He touched the victim on the breasts and vagina and masturbated to ejaculation with him ejaculating on her vagina.
10. A verdict of not guilty was returned in respect of count 14 on the indictment. Count 14 related to an allegation that the offender photographed Alexie while she was in the shower.
11. Count 15 is a "stand alone" count of Sexual Touching contrary to s 61KC(a) of the Crimes Act. The evidence of the victim relating to that count is at p 84 of the transcript. The offender went into the bathroom while the victim was showering a total of about ten occasions. Occasionally the offender would be naked and get into the shower and rub his penis against her and put it between her legs.
12. The above is drawn from the transcript of the evidence given by the victims at the trial. Not a great deal of detail is given about any of the offending. In the circumstances of the regularity with which the offender engaged in improper sexual conduct with his step daughters this is hardly surprising. The rather matter of fact manner in which the evidence they both gave of the frequency with which the conduct occurred in my view was very telling.
13. The recitation of the facts in the somewhat bland and perhaps even sanitised fashion within these remarks on sentence perhaps does not truly reflect the enormity of the offender's appalling and criminal conduct.
14. The offender was apparently indifferent and uncaring about his position of trust as the victims' stepfather, the ages of his victims, the short and long-term effects of his consistent offending on the victims and the utterly inappropriate relationship he was continuing with both of them. He seems to have regarded the victims as his sexual playthings for an extended period of time. On the issue of short and long-term effects it is now widely and generally accepted that this type of offending does have an effect on victims.

Assessment

1. It occurs to me that the following factors inform the objective seriousness of an offence contrary to s 66EA(1) of the Crimes Act: 1. The age of the child victim during the unlawful relationship; 2. The length of time over which the unlawful relationship was maintained; 3. The frequency with which sexual activity occurred; 4. The type of sexual activity involved, 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]: "As was observed in R v Gavel : '[97] … It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective 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].'" 1. The extent of and frequency of any physical violence, coercion, threats or admonitions not to disclose the offending conduct; and 2. Whether there is a position of trust or authority e.g. parent or step parent.
2. In respect of the matter contrary to s 66EA(1) of the Crimes Act relating to Talya, the victim was aged between 11 and 14 years. The unlawful sexual relationship was maintained over about 4 years. The sexual activity was very frequent, with the uncharged conduct occurring a number of times per week. The sexual activity involved digital penetration, touching and rubbing the victim's vagina and rubbing his penis on the victim's vagina. The offender was very much in the position of trust, noting he was the victim's step father. The offender at least on one occasion told the victim that if she told anyone she would not be believed but that relates to count 5 and cannot be taken into account in respect of count 1.
3. Noting these factors but particularly the frequency with which improper sexual conduct occurred the matter relating to Talya is within the mid-range, but in the lower part of that mid-range. Clearly, if I had been satisfied beyond reasonable doubt that the conduct to which count 4 relates had occurred, the matter would have been more serious.
4. Going to count 6 involving Alexie, the conduct occurred over a ten year period with the victim being aged between 5 and about 15 or 16 years of age. Again, the sexual activity was very frequent including a number of times per week. The sexual activity involved the offender masturbating in front of the victim, having the victim fellate him, cunnilingus, attempted penile/vaginal intercourse, digital penetration, having the victim touch his penis and ejaculating on the victim's vagina. There is no suggestion of coercion or violence or threats so far as Alexie is concerned.
5. Noting these features, but in particular the length of time over which the conduct occurred and the nature of the sexual activity involved the matter is above mid-range but not significantly so.
6. So far as count 5 (involving Talya) is concerned, i.e. the standalone count of Aggravated Sexual Intercourse without Consent, the aggravation pleaded is under authority and accordingly the breach of trust cannot be additionally taken into account. The matter involved forced penile/vaginal intercourse with the offender holding the victim down on the bed. The matter is well within the mid-range.
7. In respect of count 15, which is the standalone count involving the Sexual Touching of Alexie, the offending consisted of the offender getting into the shower with the victim and rubbing his penis against the victim and between the victim's legs. That involves skin on skin contact with the offender's penis touching the victim. That matter too is within the mid-range but at the upper end of that mid-range.

Criminal History

1. The offender was born on 19 November 1983 and accordingly is 40 years of age at the time of sentence and was aged between 23 and 37 within the various time frames pleaded in the various counts on the indictment.
2. In 2011 he was before the Wagga Wagga Local Court charged with domestic violence offences namely Stalk/Intimidate, Common Assault and Destroy/ Damage Property. The court dealt with those matters by way of bonds pursuant to s 10 (non-conviction bonds) for 18 months.
3. However, given the material before the court that the offender was committing serious sexual offending against two step-daughters between 2006 and 2020 the offender is not a person of good character. Mr Jackson on behalf of the offender conceded as much.

General Deterrence

1. It is undoubted that there is a strong need for general deterrence when dealing with offences of child sexual assault. This concept goes back to at 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: "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 abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.'"
2. Walton J in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 said at [50]: "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 many years, if 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 psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with 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].'"
3. 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.

Victim Impact Statements

1. The Crown tender bundle, exhibit A on sentence, contains victim impact statements from both victims. Talya read her VIS to the court and Alexie's grandmother read Alexie's VIS to the court. One can only hope that the offender listened carefully as each victim set out the short- and long-term effects of the offending on them.
2. Those victim impact statements spoke particularly eloquently about the effects of the offending on each of the victims. Clearly enough and hardly surprisingly, the offending still affects each of the victims.
3. I understood the Crown Prosecutor to submit that I would find that there was substantial harm suffered by both victims. The oral submission continued by way of rhetorical question to the effect of what is the level of injury that could be expected in a case of this type?
4. 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 statutory aggravation is made out, in particular substantial harm. Be that as it may the effect on the victims is a relevant consideration so far as s 3A(g) of the Crimes (Sentencing Procedure) Act is concerned.

Subjective Case

1. No oral evidence was called from the offender. Mr Jackson read two affidavits, one from Eileen Hollifield and the other from Beryl Wilson. Ms Hollifield is the offender's mother.
2. According to his mother, the offender was diagnosed with ADHD in primary school and was medicated but that was ceased by his mother as it made him drowsy. He needed assistance with literacy skills. It appears that the offender struggled at school.
3. Ms Hollifield's marriage with the offender's father was "not a good one". The offender's father was violent towards Ms Hollifield. She had her husband charged after he assaulted the offender and his brother who were attempting to protect her. Mr Jackson submitted at the sentence hearing, correctly in 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.
4. Further, Ms Hollifield gives some background to the offender's work history. He worked at the RAAF Base Wagga doing security type work. He also worked at the local Base Hospital where he experienced dealing with psychiatric patients, taking dead babies to the morgue and restraining patients.
5. Ms Hollifield also sets out in her affidavit that the offender on one occasion prevented a friend from committing suicide. The offender did not get on with Heidi's (victims' mother) parents.
6. The offender's mother says in her affidavit that it shocks her that her son has been found to have behaved as he did towards the victims and that that is inconsistent with the son that she knows.
7. Ms Wilson is a registered nurse and a life coach who has known the offender for about 12 years. They worked together as security officers on military bases and she was the offender's supervisor.
8. She goes on to say that to her observations the offender was a hard worker. A little later she indicated that she would employ the offender again if given the opportunity, despite the matters of which he has been convicted. However, she has retired, left Wagga Wagga and now lives in Western Australia.
9. While Ms Wilson was working with the offender her adult son died in a car accident and she suffered from post-traumatic stress for some time, during which the offender was of great comfort to her.
10. I note also that the offender had substantial family support present at the sentence hearing. His mother, step-father, biological father, aunt and uncle were present. The sentence that will be ultimately imposed will be very substantial but at least the offender has some family support.
11. There is no material on which I could make any finding of remorse. There is no psychological or sentencing assessment report with any professional opinion about the offender's likelihood of re-offending. The offender will be middle-aged when he is released but he will not be old. I am not prepared to make a finding that he is unlikely to re-offend. Further, essentially for those same reasons I am not prepared to make a positive finding that there are good prospects of rehabilitation.

General remarks

1. The parties agree that the appropriate commencement date for the sentence is 26 March 2023. Accordingly, that is the date on which I will commence the sentence.
2. I will need to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
3. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty of life imprisonment for the s 66EA(1) offences, the maximum penalty and standard non-parole period applicable to count 5 and the offending it is inevitable that there must be a substantial sentence of imprisonment imposed. That sentence must be a sentence of full-time imprisonment. Counsel for the offender did not submit otherwise.
4. At the sentence hearing I suggested to counsel that the sentence be structured by determining an aggregate sentence for the offending in respect of Talya and another aggregate sentence in respect of the offending in respect of Alexie. I understood both counsel accepted that that was an appropriate method of approach. However, upon reflection I have come to the conclusion that the matter can be dealt with by the imposition of one aggregate sentence.
5. If separate sentences were imposed there would need to be some meaningful degree of partial accumulation between the counts relative to each of the victims to recognise the different offending. Further, there would need to be some meaningful partial accumulation between the counts 1 and 6 taking into account the different offending, and in particular the different victims. The issue of totality also has to be addressed.
6. Mr Jackson did not submit that I would make a finding of special circumstances. Given the length of the total effective sentence to be imposed the statutory ratio will provide adequate time for supervision to assist the offender with reintegration into the community.
7. In arriving at the sentences that would have been imposed had separate sentences been imposed I again note the extract from Makarian v The Queen set out at [8] of these reasons. The sentences that would have been imposed had separate sentences been imposed are: Count 1: A total sentence of 11 years Count 5: A non-parole period of 3 years 9 months with a balance of term of 15 months, making a total sentence of 5 years Count 6: A total sentence of 15 years Count 15: A total sentence of 2 years 6 months

Orders

1. In respect of counts 1, 5, 6 and 15 the offender is convicted.
2. The offender is sentenced to an aggregate sentence of 20 years imprisonment with a non-parole period of 15 years.
3. The non-parole period will commence on 23 March 2023 and will expire on 22 March 2038. The balance of term on parole of 5 years will commence on 23 March 2038 and will expire on 22 March 2043.
4. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

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