The Queen v Bennett[1998] QCA 299

McPHERSON JA:  The applicant seeks leave to appeal against a sentence of imprisonment for three months imposed in the District Court at Brisbane on 27 January this year.  The applicant was originally charged with one count of rape.  However, he eventually entered a plea of guilty to a charge under s.210 of the Criminal Code of indecent dealing with a child under the age of 16 years.  His plea was accepted in full discharge of the indictment by the prosecutor on the first day of the trial and before any evidence had been led. 

The circumstances of the offence are that it took place in the early hours of the morning of 31 May 1996.  The complainant was a 14-year-old girl, who was a friend of the applicant's two daughters.

She arrived at the applicant's house after having been at a barbecue somewhere else, where she had consumed alcohol.  At the house she consumed further alcohol and smoked some marijuana with the applicant's daughters.  This was done with the applicant's knowledge.  One of his daughters passed out and the other fell asleep.

At the applicant's suggestion, the complainant and the applicant then played a drinking game of some kind on the floor of the applicant's bedroom.  During the game the complainant was offered more cannabis by the applicant's daughter, who came into the room.  The applicant intervened on her behalf, saying that the complainant had "had enough".

Eventually, she passed out on the floor, after drinking a further five glasses of beer.  When she woke up again she found herself on the applicant's bed.  He was on top of her naked from the waist down.  The complainant herself was wearing a top and a pair of panties, through which she said, and as the Judge found, his penis was touching her vagina.

The precise atmosphere of the incident may perhaps be fairly gauged from what was said on behalf of the applicant by his counsel at the sentence hearing.  Counsel was quoting from the applicant's statement.  She was asked what happened next and said, "I woke up and was lying in his bed.  He was facing me.  I was on my back.  He was on top of me."  She refers to waking up a second time.

She felt the hairs on his legs and did not realise what was happening.  She said that she must have passed out again after waking up the first time and when she woke up again she knew that he was about to have sex with her and she said, "He was about to - I pushed his penis away from my vagina area.  I don't know what happened.  And I woke up again and he was still on top of me."

"On this version", said counsel, "there were three times that she woke up."  She went on to say that, "I knew he was having sex with me.  I tried to talk.  I don't think I was able to and I woke up again and he was next to me."  "That is then the fourth time", said counsel, "on this version, on which something had happened."

"He had his arm around me", she said.  The evidence is obviously somewhat confused because of her drunken and drugged condition.  There was evidence from another source that she might have removed her own trousers earlier when she was in the toilet.  After wrapping a jumper around her waist when she finally woke up, and putting on her socks, she ran from the house and went home, where she took a long shower.

The complainant claimed that, before she had made any formal complaint, the applicant had asked her whether she had "any regrets" and referred to himself as her "boyfriend".  He, however, denied any such communication between them in relation to what had happened.  He claimed to recall little of the incident and said he could not remember removing his pants, although he does not seem to have denied that he had no pants on at the time she woke up.

Until he pleaded guilty on the day of the trial he flatly denied that any sexual activity had taken place between him and the complainant.  The learned trial Judge described the applicant's conduct in taking advantage of the complainant's condition as "quite disgraceful", particularly after permitting, if not encouraging, the "skolling" of alcohol in the context of a game with her and permitting her to smoke marijuana in his house.

The applicant contends that his sentence should be reduced to a community service order or a fully suspended sentence.  He submits that insufficient weight was given to mitigating circumstances.  As to that, he relies on what he says was his early plea of guilty and submits that the offence is towards the lower end of the scale of seriousness.  He says that the offence took place for only a few seconds and that no specific touching of private parts, kissing or threats of force were alleged against him.

He is said to have a good employment record and no prior convictions for sexual offences.  Most of his convictions date back many years, but it may be noticed that two of them were recorded in 1995 and 1996, and that among the earlier ones are nine counts of housebreaking. 

The complainant herself appears to have suffered considerably from the experience.  She reports that since the incident she has experienced stress, depression and low self-esteem.  She has attempted suicide more than once.  After undergoing the committal proceedings, she was admitted to hospital, where she remained for some three to four days.  She had to change schools to avoid association with some people, including one of the applicant's daughters.  She claims to have lost some of her friends and to have suffered verbal abuse. 

The serious features of the offence obviously are the difference in ages of the applicant and the complainant and the fact that she was a visitor to his house at the time.  At the time of the offence she was only 14 and he was 38 years old with three daughters of his own.  He took advantage of her drunken or drugged condition.  It is true that he had been drinking himself, but that does not in the circumstances, go in any sense in mitigation of his offence.  The maximum penalty for the offence is imprisonment for 10 years.  While no one would suggest a sentence of anything like as severe as that in the present case, an offence of the kind committed here would ordinarily attract a term of imprisonment; compare R v. Pham (CA 435 of 1996 6/2/1996). 

The complainant herself appears to have suffered considerably as a result of what happened.  In these circumstances, a sentence of imprisonment for three months, even following a plea of guilty, can scarcely be considered excessive.  Indeed, on one view of the matter, the applicant fared quite lightly in that respect.

A somewhat similar state of affairs arose in the case of R v. McFarlane (CA 473 of 1993 1/3/1994) where the Court of Appeal reduced the sentence of the applicant from 18 months to six months.  The accused in that case had entered the bedroom of his 11-year-old daughter on two occasions and indecently assaulted her.

The offence involved touching her breasts on the outside and inside of her clothing and her vagina from the outside of her clothing.  In one self-evident way the offence was more serious in some ways than the circumstances in which the offence here was committed by the applicant so called for greater condemnation.  Comparatively speaking, if it is necessary to say so, the term of imprisonment imposed in this case compares not unfavourably with that in R v. McFarlane. 

I can see no basis for concluding that the sentence imposed here was excessive or that the Judge made any other sentencing error in imposing it.  In consequence, I would refuse the application for leave to appeal.

THE PRESIDENT:  I agree.

SHEPHERDSON J:  I agree also.

THE PRESIDENT:  The application is refused.

MR FARR:  Just before the next matter is called, Your Honour, I should indicate that the applicant in this matter, Bennett, was granted bail pending appeal on 11 February, so a warrant would need to be issued.

McPHERSON JA:  Had he already got to the parole‑‑‑‑‑

MR FARR:  No, no.  He's served 13 days.

McPHERSON JA:  Well, for my part, I would order that a warrant issue for his apprehension.  Do you want it to lie in the Registry for seven days?

MR FARR:  Would you allow it?  Yes, please.

McPHERSON JA:  Yes.

THE PRESIDENT:  I agree.

SHEPHERDSON J:  I agree.

THE PRESIDENT:  The order will be as indicated by Mr Justice McPherson.