Churchie swim coach Benjamin James David Allen sentenced to 180 hours’ community service

A former Churchie swim coach who sexually assaulted a schoolgirl has appealed his sentence with a court hearing how the exchanges between the pair turned from “just talk to actual action”.

Benjamin Allen leaves the Brisbane Magistrates Court last year. Picture: Steve Pohlner

A former elite school swimming coach who sexually assaulted a schoolgirl has appealed his sentence arguing the recording of a conviction “will have an ongoing punitive effect”.

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

A suppression order on the case was overturned after The Courier Mail launched legal action however precise details of the offending remain unknown as the court was closed to the media during sentencing.

According to a bench charge sheet, Allen unlawfully and indecently assaulted the then 16-year-old girl, who was not a student at Churchie at East Brisbane in 2022.

Barrister Steven Dickson, instructed by Beavon Lawyers, told Brisbane’s District Court on Wednesday that the offending was at the lower end of seriousness for sexual assault type cases.

“There’s no skin on skin contact, it was a brief interaction and it ceased there, there was no ongoing contact from there,” he said.

Judge Ian Dearden said Magistrate Michael Quinn had much before him in terms of mitigation “including the lower risk of reoffending, the public shaming, the choice of a new career, retraining, etc, receiving assistance”.

Former Churchie swim coach Benjamin Allen at a previous court appearance. Picture: John Gass

However Mr Quinn also had to weigh up what in Judge Dearden’s opinion was a “very long” lead up time to the offending.

“This was, in fact, not a momentary action by the appellant. This was the culmination of some 900-odd exchanges most of which … were not necessarily exchanges with a sexual flavour, although they demonstrate a clear blurring of boundaries,” he said.

“So it turned from just talk... to actual action, and that action, of course, was not an action that gave the complainant the option of consenting because it was unilateral action by the appellant in particular circumstances.”

The court heard not all 900 messages came from Allen but were part of exchanges.

Mr Dickson argued Mr Quinn erred in recording a conviction - so that Blue Card services would be aware of the offence - when in fact a conviction need not be recorded for that to occur.

Judge Dearden said the problem with this argument was that Mr Quinn had referred to “licensing bodies” not a singular body or just Blue Card services.

The defence also highlighted Mr Quinn’s use of the word “child” when by definition under the criminal code the victim was not considered a child.

“His honour has the experience to understand the blurring of the lines when using that language… so there’s some ambiguity in my submission about the learned magistrate’s language,” Mr Dickson said.

Judge Dearden said the victim was a child under different legislation and Mr Quinn, who was previously a “very experienced lawyer”, would have been aware of the distinction.

“If it was a child under the criminal code your client would have been charged with an indecent deal and not a sexual assault, so it’s not hard to see that his language was in that approach, I understand your argument but I’m not necessarily convinced,” he said.

The appeal seeks the penalty of 180 hours community service to remain but the deletion of the recorded conviction which will “have an ongoing punitive effect” and rendered the sentence manifestly excessive.

“In his current employment, working in IT, requires him to have some minor contact with students, so it will hamstring his ability to progress his career,” Mr Dickson said.

Crown prosecutor Nicole Hopper opposed the appeal saying the intent of Mr Quinn remarks were that there was a legitimate basis for recording a conviction because there are “ many licensing bodies, there are future employers, there are people out there in the community that have a legitimate interest in knowing”.

She said he had determined “that not recording a conviction would not reflect the true nature and seriousness of the appellant’s offending”.

“Sure this is going to impact him but perhaps it should,” Ms Hopper said.

Judge Dearden reserved his decision.