The Queen v Benetto[1997] QCA 433

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 367 of 1997

Brisbane

THE QUEEN

v.

ERIC WILLIAM BENETTO

(Applicant) Appellant

Macrossan CJ

Thomas J

Helman J

Judgment delivered 2 December 1997

Judgment of the Court

APPLICATION GRANTED. APPEAL ALLOWED. EIGHT YEAR SENTENCES REPLACED BY SIX YEARS WITH RECOMMENDATION FOR CONSIDERATION OF PAROLE AFTER TWO AND A HALF YEARS. IN ALL OTHER RESPECTS THE SENTENCES, DIRECTIONS AND RECOMMENDATIONS REMAIN UNDISTURBED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 2 December 1997

The applicant was convicted of multiple sexual offences against children.  He pleaded guilty to 58 counts involving his dealing with eight children, six of whom were under 12 and two of whom were aged between 12 and 16.  Most of the counts were of indecent dealing involving touching, and some involved other acts such as undressing in front of a child, and showing pornographic computer images.  The actual offences were:

33 Counts of indecent dealing with a child under 12

10 Counts of procuring a child under 12 to commit an indecent act

2 Counts of permitting indecent dealing by a child under 12

5 Counts of exposing a child under 12 to an indecent act

1 Count of exposing a child under 16 to an indecent act

5 Counts of exposing a child under 12 to an indecent photograph

2 Counts of exposing a child under 16 to an indecent photograph

All except one of the offences were committed during 1995-1996.  He was sentenced to eight years’ imprisonment on each of the offences involving children under the age of 12 (i.e. on 55 of the counts) and to four years’ imprisonment for the offences involving those under the age of 16.  There was a recommendation that he be considered for release on parole after serving three years and six months.

The applicant is a 59 year old man.  He has no previous convictions.  He had worked as a fitter with Queensland Railways and with various companies until the age of 46 when degenerative problems in his spine precluded him from further employment.  He had been active in civic duties, including 12 years’ work with the Coastguard and a significant period with an emergency maintenance service which requires persons to monitor various CB radio channels.

The circumstances of the offences, in summary, concern 42 occasions of misconduct including putting a child’s hand on his penis, getting a child to masturbate him, undressing in front of a child, having a shower with a child, rubbing the outside of a girl’s vagina with hand or foot, showing pornographic computer images, and touching a male child on the penis.  25 of these occasions were matters of which the complainant children had not made any complaint and of which they had no memory.  Those charges were brought on the basis of his admissions to the police when they questioned him with respect to a limited number of complaints.  Many of the offences would therefore not have come to light but for his cooperation.  It is to be noted that the indictment has been drawn so that a single episode might result in several counts, such as for example by charging undressing as one act and touching a complainant as another.  This procedure is of course perfectly proper, but this should be borne in mind lest the reference to 58 counts might give an impression of more extensive activity than in fact occurred.

There is little purpose in giving a long account of the individual instances, but it is necessary to give an indication of the nature of his activity.  13 of the counts concern a child (Jessica).  The count relating to 1989 involved her when she was 4 or 5 years old.  The applicant put her hand on his penis and told her to rub it and she did so.  He was living in the same house as her family at the time and was seen in a grandfather role.  The other offences concerning Jessica took place in 1995 and possibly during 1996.  The offences involving other complainants occurred in 1995 or 1996, most of them during 1996.

One complainant (Samantha) was touched on her genitals by him when she slept over at the applicant’s house, as she was permitted to do from time to time.  She also was aged 10 or 11.  The other complainants (male and female) were aged between 9 and 14.  Another complainant (Megan) aged 10, was shown indecent computer images.  He volunteered to police that he had also rubbed her clitoris on a number of occasions.

The effect of his conduct is impossible to assess.  Much of it had not been the subject of complaint when the police investigation brought it to an end.  One victim impact statement was tendered concerning a male complainant (Adam) suggesting that his behaviour started to change for the worse upon his association with the applicant, and noting that he was now hardly ever happy or affectionate and was sometimes aggressive.

In each instance the children and their families were known to the applicant, and he inveigled himself into a position where the offences could be committed, plainly breaching trusting relationships.  Sometimes inducements were offered to the children, and his conduct was prone to corrupt them.

The conduct involved no penetration, digital or otherwise, or violence or threats of any kind.  Unpleasant though the conduct is, it is plainly not in the worst category of this kind of offence.

The maximum penalty that could be imposed for any of these offences was 10 years’ imprisonment (s. 210(3) of the Code).  The maximum penalty for indecent dealing with children of the ages with which we are primarily concerned was increased from 7 years to 10 years’ imprisonment in 1989, and it has recently been increased to 14 years (Criminal Law Amendment Act 1997).  The 1997 Act however does not apply to the present applicant.  It can be seen then that the penalty imposed by the learned sentencing judge approaches the maximum that could be imposed.

Before discussing the appropriateness or otherwise of this level of sentence for the conduct in question, it is necessary to mention an apparent error in the way in which the learned sentencing judge gave effect to the applicant’s plea of guilty. In recent times sentencing practice is such that those who make timely pleas of guilty may expect a moderate approach from the Court in recognition of the saving of public money and resources that results from such pleas, and in recognition of other factors, when appropriate, such as the sparing of further distress to complainants, and the extent to which such a course may be seen to reflect remorse or to be an early step towards possible rehabilitation.  These factors, and possibly others, have led to an expectation in present-day sentencing practice of what has been called “some degree of credit” (R v Bulger [1992] 2 Qd R 559, 563).  In the present case the learned sentencing judge acknowledged that the applicant’s pleas of guilty deserved to be taken into account, but went on to observe that “those pleas of guilty are tempered to a degree by the fact that you admitted the offences to the police”.  His Honour returned to that theme when dealing with the question of remorse, observing “Your pleas of guilty may indicate a degree of remorse, but as I have said, you made full admissions to the police”.  His Honour seems to have been of the view that this somehow devalued the later pleas, perhaps upon the notion that if there is an overwhelming police case, a plea of guilty may reflect little more than a facing up to the inevitable.  However that may be, in [our] view the benefit of a plea of guilty is buttressed by an early admission of guilt rather than the reverse.  Early admissions simply indicate that the cooperation has started at an earlier time.  It is an error to regard a prompt confession to police as tempering or undermining the benefit that might otherwise attach to a plea of guilty.

It would therefore seem that the learned sentencing judge erred in principle in treating the pleas of guilty as tempered by the fact that admissions were made to the police.  It is apparent on the face of the sentences that only a very small credit seems to have been allowed to the applicant in respect of his guilty plea, his cooperation, his clear record and his community service.  It will therefore be necessary for this Court to interfere with the sentence, although interference on this point alone might call for only a relatively minor alteration.

We turn to the question whether the sentences of eight years were in the circumstances manifestly excessive.  On this issue both counsel for the applicant and counsel for the Crown made the same submission, namely that the appropriate range within which sentence should have been imposed was five to seven years.  The Crown’s submissions was however that this case should be at the higher end of that range, and that eight years would therefore not be seen to be manifestly excessive.  There was a further submission for the applicant that a parole recommendation should be made after two years.

There do not appear to be any truly comparable cases.  In particular there have not been any previous cases in this court involving a large number of middle-range indecent dealings with multiple complainants under 12.  The fact that many offences were committed and that multiple complainants were involved shows what is sometimes called a greater totality of criminality, and this should increase the operative sentence that is imposed.  It cannot however be permitted to remove the need for proportionality to the relative seriousness of the particular counts to which the sentences are attached (Veen v The Queen (No.2) (1987-1988) 164 CLR 465). 

The most relevant of the cases to which we were referred were Trost CA 386 of 1995, 3 November 1995, and Ezzy CA 539 of 1994, 13 March 1995.  Trost concerned the unlawful maintaining by a man in his sixties of a sexual relationship with a child under 16 over a four-year period, and indecent dealing involving his four infant granddaughters all of whom were under the age of 12.  The maximum sentence then available on the first charge was seven years, and on the others, as in the present case, ten years.  In some ways Trost’s conduct was more serious and in others less serious than the conduct of the present applicant.  He appealed against sentences totalling five and a half years with a recommendation for consideration of parole after three years.  Counsel in that case accepted that a sentence of five and a half years properly reflected the applicant’s overall criminality, and the Court, without further adversion to this, proceeded to consider the question of an appropriate parole recommendation, deciding that this should be reduced to two years.  Trost was a 64 year old man of good character.  His conduct was more invasive than that of the present applicant, and included digital penetration of the vagina.  He was less forthcoming than the present applicant in his dealings with the police, and although he pleaded guilty, this was delayed to the extent that one of the complainant was cross-examined at committal.  However, the instances of his misconduct were fewer, and the criminality and harm caused by the present applicant should in our view result in his conduct being viewed more seriously.

Ezzy is not comparable.  His offences included the rape of a 4 year old girl and indecent dealing with five boys aged between 6 and 12.  He was sentenced to six years in respect of the rape and two year sentences imposed for the indecent dealings were made cumulative.  Thus his overall sentence was one of eight years.

The factors which would support the imposition of a high sentence include the sheer number of the offences, the number of complainants (six aged under 12 and two under 16), the abuse of trust and the untold stress and trauma to the families and children.  The learned sentencing judge also noted that there was no suggestion that the applicant had any psychiatric or psychological problems that could explain his conduct, and that apart from what might be inferred from his pleas of guilty, there had been no express mention of remorse.  The factors which call for moderation in the sentence include that the facts do not fall at the more serious end of the wide range of circumstances attending offences of this nature, his cooperation with the police, the fact that without this cooperation 25 of the offences would not have been known or charged,  his past community service and his unblemished record.

With all these matters in mind we consider that the sentences were manifestly excessive and that the eight year sentences should be replaced with sentences of six years with a recommendation for consideration of parole after two and a half years.  In all other respects the sentences, directions and recommendations of the learned sentencing judge should remain undisturbed.