Benjamin Allen’s appeal against conviction recorded refused

A former elite school swimming coach who offered to keep a secret in return for a favour from a 16-year-old girl who he went on to sexually assault has lost his appeal, with new details of the previously suppressed case now revealed. 

Benjamin Allen leaves. Picture: Steve Pohlner

A former elite school swimming coach who offered to keep a secret in return for a favour from a 16-year-old girl who he went on to sexually assault has lost his appeal.

Ex-Anglican Church Grammar School (Churchie) swim coach Benjamin James David Allen, 35, was sentenced in Brisbane Magistrates Court to 180 hours’ community service with a conviction recorded after he pleaded guilty in March to one count of sexual assault.

New details of the previously suppressed case can be revealed after Allen’s attempt to overturn the recording of a conviction was refused.

Brisbane’s District Court heard that in early 2022 Allen began sending the victim, who was not a student at Churchie, messages via text message and Snapchat.

The two exchanged over 900 messages in 2022, the court heard.

Allen asked the girl a very personal question saying he “would keep it a secret from her parents in return for a ‘favour’,” the court heard.

Over several months Allen repeatedly brought up the favour but did not tell the girl what it was, asking her to guess each time and whenever he was alone with her he asked whether the answer was a “yes” or a “no”, the court heard.

When she said no, Allen asked if it was a “definite no”.

On several occasions he told her not to tell anyone.

Benjamin Allen leaves Brisbane Magistrates Court. Picture: John Gass

The day before the sexual assault the victim asked what the favour was on Snapchat and Allen responded with an open-handed emoji saying “does this give you a hint?”.

“In one message, the defendant said the favour was to do with being on your knees … that it would be messy, and it would take 30 minutes … when there was no one else around,” Judge Ian Dearden, who heard the appeal, said.

The following day Allen brushed her hand against his hard penis underneath his shorts four times constituting the sexual assault, the court heard.

The victim reported the incident and gave a statement to police.

Allen continued contacting her and apologised for any inappropriate conversation saying he was “bantering” to get information but it may have gone too far.

The girl’s victim impact statement referred to “numerous internal struggles and considerable mental distress throughout this ordeal” and that she “felt manipulated” which led to “a profound impact on [her] psychological wellbeing”, the court heard.

During Allen’s sentencing, which was heard in closed court, the crown prosecutor identified the victim’s “extremely young age” of 16, the 17-year age gap to Allen, the “severe impact” on the girl, and the brazen nature of the offending which occurred after “months of inappropriate communications” as aggravating factors, according to the appeal decision.

The prosecutor sought a suspended prison sentence of up to a year and noted a psychological report failed to provide any explanation for the offending outside of it being for Allen’s sexual gratification, the court heard.

She accepted it was an early plea of guilty, and that Allen had no prior criminal history and was otherwise of good character.

Allen’s barrister at sentence Alastair McDougall, instructed by Beavon Lawyers, tendered 12 character references, and apology letters to the court and the victim by his client.

Mr McDougall stressed Allen’s remorse to the point of self loathing, the loss of his job, career and relationship with many family members, the loss of nearly all his friends, his engagement with a psychologist, being named in the media and the offer of $3000 to the victim for compensation which was ultimately ordered.

He sought a three-year probation order, a community service order, and submitted a conviction should not be recorded pointing to the impact it would have on Allen’s new employment.

Magistrate Michael Quinn accepted Allen was remorseful and had “done everything” possible to rehabilitate himself and show he was sorry, noting character references described him as a “decent member of the community”.

He noted the sexual assault involved touching, not skin to skin and Allen was fully clothed.

Mr Quinn said the offence involved an abuse of trust and a power imbalance and while it occurred on only one occasion it could not be divorced from the totally inappropriate messages and “suggestions” preceding it, although it was not submitted there had been any grooming, the court heard.

“Mr Allen, what you did was unforgivable. There was a degree of planning in it, the lead up to it, and in any society, this type of behaviour cannot be tolerated,” Mr Quinn said at sentence.

He expressed concern that “if a conviction was not recorded … it might not reflect the true nature of the seriousness of your offending”.

He decided to record a conviction noting Allen’s new employment did sometimes require association with groups where there might be contact with children and identified the protection of vulnerable children as a paramount concern.

Allen appealed the decision to record a conviction on the basis Mr Quinn erred in referring to the victim as a child given under the Penalties and Sentences Act, a child is one under 16 years.

But Judge Dearden dismissed this ground.

“In referring to the complainant as a child, the magistrate was accurately referring to a complainant, aged 16 at the time of the offending and 17 years at sentence,” he said in a decision published last month.

The appeal also argued Mr Quinn failed to place sufficient weight on the appellant’s future risk of reoffending, which was categorised as low, and that he erred in concluding that a conviction needed to be recorded for licensing bodies to be informed.

But Judge Dearden found Mr Quinn did not err in these respects and the appeal was dismissed.

A suppression order on the case was previously overturned after The Courier Mail launched legal action.