R v BENFIELD [2024] NSWDC 210

District Court New South Wales

Medium Neutral Citation: R v BENFIELD [2024] NSWDC 210 Hearing dates: 21 May 2024 Date of orders: 20 June 2024 Decision date: 20 June 2024 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced – see [87]-[90] Catchwords: Maintain Unlawful Sexual Relationship with a Child under 16 years - Aggravated Sexual Intercourse Without Consent - Intentionally Sexually Touch – Two counts of Maintain Unlawful Sexual Relationship with a Child Under 16 both being step-daughters Legislation Cited: Crimes Act, 1900 Criminal Procedure Act, 1986 Evidence Act 1995 Cases Cited: 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 Category: Sentence Parties: Rex Shaun BENFIELD Representation: Counsel: Mr P Kerr, Crown Prosecutor at trial and sentence Mr T Jackson for the Offender at trial and sentence

Solicitors: Office of the Director of Public Prosecutions Pennicott Weir Lawyers File Number(s): 2021/17384 Publication restriction: No.

JUDGMENT 1. These reasons are not anonymised as both victims successfully sought to have the non-publication restrictions lifted so far as they were concerned. Relevant orders were made just before the sentence hearing at the Wagga Wagga District Court on 21 May 2024. 2. Both victims have the same last name. Accordingly, without meaning any disrespect to the victims I will refer to them throughout these reasons by their first names. 3. The offender appeared at the Wagga Wagga District Court on 5 July 2023 and pleaded not guilty to total of 15 counts on an Indictment relating to two victims. Count 1 was a charge of Maintain Unlawful Sexual Relationship with a Child under 16 years in relation to Talya Pendrick. There were then 3 alternative charges to that count, the conduct concerning which also went to count 1. Count 5 was a stand alone count of Aggravated Sexual Intercourse Without Consent. 4. Further, count 6 was a charge of Maintain Unlawful Sexual Relationship with a Child under 16 years relating to Alexie Pendrick. There were then 7 alternative counts the conduct concerning which also went to count 6. Count 14 was a charge of Intentionally Record Intimate Image in respect of which the jury returned a verdict of not guilty. Count 15 was a standalone count of Intentionally Sexually Touch the victim contrary to s 61KC(a) of the Crimes Act, 1900. 5. The jury returned verdicts of guilty in respect of counts 1 and 6 and accordingly there was no requirement for verdicts in respect of the alternative counts. Verdicts of Guilty were also returned in respect of count 5 relating to Talya Pendrick and count 15 relating to Alexie Pendrick. 6. The offender pleaded not guilty to all matters and put the Crown to proof. Accordingly, there can be no discount or consideration for any plea of guilty. That is not to suggest that the penalty is increased because the offender put the Crown to proof rather there can be no consideration or discount for any plea of guilty. 7. Although verdicts of guilty were returned on 12 July 2023 at the request of both parties the sentence hearing of this matter was held in abeyance until the High Court handed down the decision in Xerri v The King [2024] HCA 5. Following that decision, it is clear that the maximum penalty for counts 1 and 6 is life imprisonment. 8. Parliament has not specified a standard non-parole period in respect of the offences to which counts 1 and 6 relate. On the issue of the maximum penalty the plurality (Gleeson CJ, Gummow, Hayne & Callinan JJ; HcHugh agreeing with the joint decision but with his own reasons) in the High Court in Makarian v The Queen (2005) 208 CLR 357 at [31] said: It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. 1. The maximum penalty in respect of count 5, i.e. contrary to s 61J of the Crimes Act, is 20 years imprisonment with a standard non-parole period of 10 years. The maximum penalty in respect of count 15, i.e. Sexual Touching contrary to s 61KC(a), is 5 years imprisonment with no standard non-parole period.