Director of Public Prosecutions v Benton (a pseudonym)

[2019] VCC 1237

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT WODONGA
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

FABIAN BENTON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 August 2019
CASE MAY BE CITED AS:	DPP v Benton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1237

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr A. Marshall

HIS HONOUR

1Fabian Benton[1] you have pleaded guilty to the following offences which carry the following maximum penalties:  Charge 1 is a charge of indecent act with a child under the age of 16, the maximum penalty for this offence is ten years imprisonment.  Charge 2 is a charge of maintaining a sexual relationship with a child under the age of 16 years that carries a maximum penalty of 25 years imprisonment.  Charges 3 and 4 are charges of producing child pornography each charge carries a maximum of ten years imprisonment.  Charges 5 and 6 are charges of using an online service to transmit child pornography, each carries a maximum penalty of ten years imprisonment.  Charge 7 is a charge of knowingly possess child abuse material that carries a maximum of ten years imprisonment.

[1] A pseudonym.

2As you will be sentenced to periods of imprisonment on charges one and two, you fall to be declared a Serious Sexual Offender within the meaning of Part 2A Sentencing Act and sentenced as a serious sexual offender in respect to charges three to seven on the indictment.

3In addition, your plea of guilty to these offences requires your registration pursuant to the Sexual Offenders Registration Act for life.  The Act imposes restrictions and reporting requirements which you will have to comply with after your release from prison for the rest of your life.

4You have no prior convictions and no subsequent matters and nothing outstanding.

5The Crown tendered a summary prosecution opening as exhibit A.  A summary of your offending is as follows.

6The victims of your offending in the first place where your grandchildren Andrea Gilliam[2] and Shara Gilliam.[3] The victims are the children of your daughter Kim Wright.[4]

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

7In about the year 2000, after her divorce from the victim’s father Todd,[5] Kim moved with her children to the Wodonga area where you lived.  It is apparent that you were integral in raising Ms Wright’s children.  This put you in a position, not only of being a grandfather, but in a position of trust and a general responsibility for the care, welfare and nurturing of your daughter’s children.

[5] A pseudonym.

8The offending the subject of charge one arose from the time Andrea was about 10 or 11 years of age.  On occasions when Andrea was on her own or if only Andrea and her sister Shara were around, you inappropriately tickled Andrea.  Andrea specifically remembers an occasion when she was on the recliner, sitting on your lap.  You put your hand inside her shirt and tickled her across both sides of her chest and repeated the action a short time later.  You then placed your hand down the front of her underwear and tickled her directly on her vagina.  You again moved your hand up and tickled her chest and then moved your hand back inside Andrea’s underwear and tickled her buttocks.

9Andrea states that this type of tickling occurred on seven or eight occasions. The offence to which you have pleaded is a representative count.  The significance of this is twofold.  First, it may operate to deny you leniency that might otherwise result from the offence being an isolated incident.  Secondly, it may be used to put the offence in context.  It does not increase the maximum penalty and should not be used to impose a disproportionate sentence in respect to the offence.  Further, it does not stand as an aggravating factor. Rather, I will take the two factors I have just outlined into account in sentencing you on charge one.

10Charge 2 of maintaining a sexual relationship with a child under 16 extends on the indictment from 1 January 2002 to 17 July 2004, however the evidence for this charge depends largely on approximately 141 photographs taken by you which document and catalogue your sustained sexual offending against the complainant Shara on not less than five occasions between December 2003 and July 2004.  The photographs document a series of indecent acts and sexual penetrations committed by you.  The particulars on the indictment to which you pleaded guilty are that you:

·First, you positioned the victim in sexual poses whilst she was naked;

·Secondly you exposed your penis in front of her face;

·Third that you procured her to touch or masturbate your penis, and placed her hand upon your penis;

·Fourth that you introduced your penis into her mouth and into her vagina;

·Fifth that you touched her buttocks, anus and vagina with your fingers;

·Sixth that you penetrated her vagina with a truncheon;

·Seventh that you penetrated her vagina with your finger;

·Eighth that you attempted to penetrate her vagina with your penis; and

·Ninth that you placed your penis between the cheeks of her buttocks.

11The statement of the particulars in the indictment to which you have pleaded do not adequately describe the utter depravity of your offending.  The photographs, which I emphasise do not form part of this offending for this charge, but are the subject of charge three, are described in the opening.  Those photographs graphically depict your acts of abuse and your gross sexual exploitation of your young victim.  In addition to the matters I have described above (which were all photographed) your actions include the following:

a.You blindfolded your victim.  Once you had blindfolded her, you variously positioned her in order to take graphic photographs of her exposed vagina and anus; and penetrated her; and had her hold your penis;

b.You bound her hands behind her back and positioned her so as to take similar graphic photos of her genitals and to engage in sexual acts with her;

c.You photographed yourself pushing your knuckle between the victim’s buttocks so it appeared that you had digitally penetrated her anus;

d.You placed a substance which looked like ejaculate on the complainant’s hand which she posed to lick off.  You placed the same substance on her face;

e.You used your fingers to separate the victim’s buttocks to expose her anus and vagina to photograph;

f.You placed the victim in a kneeling position, bound and blindfolded, exposing her genitals and with her mouth open.

12Charge 3 is the charge of producing child pornography.  This relates to taking the photographs of Shara that I have just described.  The defence submits, and the Crown agrees that there must be a fair proportion of concurrency between Charges 2 and 3.

13Charge 4 is a charge of making or producing child pornography.  Between October 2005 and October 2008, you took photographs of yourself.  These photographs depict you masturbating whilst holding a photograph of either Shara, Andrea or another child.  The third child depicted in some of the photographs was a close friend of Andrea and temporarily lived with their family.  The photographs depict your exposed penis and what appears to be ejaculate on the photographs where the girls’ mouths or faces are depicted.

14Charge 5 is a charge of using an online information service to transmit child pornography.  Between May 2008 and March 2009, you used your computer to create an online profile name of “Beth” to chat online with approximately 60 other users around the world and you purported to be a late teenaged female who was sexually abused by her father whilst under the age of 16.  You described fantasy pornographic acts committed on the child by her father and his friends and included bestiality.

15Charge 6 is a charge of transmitting child pornographic material.  On 22 January 2017 you emailed four images, two of which were photographs of Shara’s vagina, to an unidentified person.

16Charge 7 is the possession of child abuse material.  On 28 June 2018 police executed a warrant at your house and your computer and hard drives were analysed.  In all, some 600 images and videos of child exploitation material were discovered.  Included in this material were the images of Shara, Andrea and their friend to which I have already referred.

17Chillingly, the 141 plus images of Shara to which I have referred were meticulously catalogued and described. Terms such as, “fits well”, “Nikki open to receive cock”, “Nikki waiting gang bang”, “pictures taken by my bf”, “pussy pusher”’ “pussy sore from use”, “waiting for his cock and cum” “red raw from use” “she can suck fat cocks” are just some of the descriptions you have used on photographs you took with the victim.

18The material was located across two different devices.  The main device, a blue coloured verbatim hard drive was analysed and according to the ANVIL schema, 533 images were level I, 83 images of level II, 297 images at level III, 318 images and seven videos at level 1V, and then there were images at level V and 22 images at level VI.

19The Toshiba laptop had 11 images at level I, three images at level II, four images at level III and one image at level IV.

20You were first interviewed by police on 28 June 2018.  I interpose that police were notified when your grandson came across the material and found photographs of his cousin.  He saw that you were depicted in those photographs and reported the matters.

21Returning to the question of your first interview, you generally denied responsibility for the child pornography found on your computers.  You stated you believed a work colleague had reported it to police after a disagreement and that you did not look for or download child pornographic images.

22You were interviewed again by police on 13 August 2018 where you made considerable admissions but also with a number of qualifications.  You told police that you took advantage of Shara’s curiosity.  You said that whilst you are not trying to blame Shara, you had a feeling that “she wanted to try things”.  You stated it happened maybe five or six times over perhaps two or three-year period.  You denied penetrating her vagina with your penis or fingers. Rather, you thought that it was all Shara performing oral sex on you.  You admitted there was “a bit of bondage” because “Shara was curious”.  You denied doing anything with Andrea.

23On a number of occasions you said that Shara “wanted”, (and I am using these quote marks deliberately) to perform acts, and that you considered her curiosity had been satisfied.

24You were charged with offences on 13 August 2018 and remanded in custody on that date. The matters were resolved at the earliest time.  On the date of the plea hearing before me, which was 1 August 2019, you were committed for trial on some of the matters to which I have referred and they were incorporated into the indictment to enable all matters to be dealt with and finalised before me at the one hearing.

25In my view you were cooperative and took steps to ensure that all matters were finalised expeditiously.

26I turn now to consider the objective gravity of the offending and your moral culpability.

27All of these are serious offences, as demonstrated by the maximum period of imprisonment prescribed for each offence however in particular, I consider the charges 1, 2, 3 and 5 to be of particularly serious examples of these serious offences.

28Charge 1 is of course serious because it involves your granddaughter Andrea. It is made insidious as you took an innocuous activity, tickling a child and turned it into a lascivious act.  You engaged in tickling your granddaughter on repeated occasions for your sexual gratification.  There is no other explanation; nor do you offer one.  You took the opportunity when there were no responsible adults around to engage in this activity.  Moreover, as I have already mentioned it is a representative charge and represents the multiple occasions in which you engaged in this type of offending

29Charge 2 is the most serious charge on the indictment, it is serious because it was sustained, numerous, varied, exploitative, humiliating acts of sexual offending, and demonstrative of the power an adult holds over a child.

30The charge is expressed as ‘maintaining a sexual relationship’ etc.  It is a “relationship” only in the sense of the multiplicity of sexual acts committed, and the time over which they were committed.  Your answers in the record of interview perhaps suggest that you were not entirely reconciled to the fact that it is you who used your wiliness and adult experience to engage in these acts with a child.  There is no room for justification or explanation such as that Shara was “curious” or that she “wanted” (and I use quotation marks over both those words deliberately) to engage in the acts portrayed in the photographs.  It was your responsibility as an adult male, with a life experience in military law enforcement, as a grandfather and, to some extent, as a general guardian, to protect your granddaughter over the course of her childhood and teen years.  There is a clear bright line which stands as a legal, moral and ethical prohibition against any form of sexual contact between an adult and a child.  There is no concept of consent by which an adult can justify or rationalise that what they did was in fact simply a weakness of giving in to a curious or desirous child. The decision to abuse this child over the course of this sustained period, on numerous occasions and in so many varied and degrading ways must be laid squarely at your feet.  The responsibility is entirely yours for acting on your paedophilic desires.

31I point out also in respect to charge 2 that any one of the offences committed in isolation would justify a long term of imprisonment in the norm.  The seriousness of the acts committed must not be lost for fact that they are combined into a single offence.  Having said that, you must not be punished within this offence as if each carries its own separate period of imprisonment.  Rather, I must impose a sentence for the one offence.

32Charge 3 is the charge of making producing child pornography.  The fact that you chose to document and record your activities against your grandchild is particularly grave.  Having said that, I have already acknowledged the fact that there must be substantial concurrency between this and the second offence.

33There cannot however be total concurrency.  If the fact of recording and documenting your activities is not of itself bad enough, there were two consequences.  First, your record was uncovered by your grandson.  He therefore saw what you did to his cousin and saw his cousin in a way that ordinarily he would never have been permitted to do.  Secondly the child abuse material you created was used in offending some 13 or 14 years later when you transmitted images to an unidentified recipient.  Undoubtedly, the digital age has made the commission of this type of crime and the further crime of transmitting material infinitely easier.  Despite the best efforts of criminal investigation agencies, there remains a worldwide ability to disseminate abuse material.  The fact that you were able to produce the material, to possess it for such a long period of time and to then disseminate it speaks of the ease with which this vile illicit activity can be committed without detection.

34Charge 5 is your creation of fantasy text years after your initial offending against your granddaughters.  The text serves to show that your paedophilic desires had not waned over time or with age.  The fact that it was disseminated to and received by about 60 others shows the extent of the problem.

35Charge 6 is, as I have already observed, (It is Charge 1, 2, 3 and 6 not 1, 2, 3 and 5 that I consider the most serious), is the dissemination of the material including photographs of your granddaughter. Dissemination of child pornography made by you is a low act of betrayal.  Not satisfied with the abuse you had perpetrated years before, you shared the images of her.  This in effect guarantees that those images will remain out in the world forever.  It shows that over the years you had no regret, no remorse, no insight, no second thoughts.  You had no empathy or care for your granddaughter whatsoever as she grew up.  Putting new child exploitation material out into an untraceable cyberspace is utterly unforgivable.  It is made worse when it is your own descendant, known to you and someone who loved you.  Notwithstanding the time you had to reflect, and to destroy the material, you chose instead not only to keep it but to send it to another.  You showed your granddaughter and your family no pity and no respect.  Your acts will be met with stern punishment.

36Charge 7 is the possession of the child pornography, including the catalogued images of your granddaughters.  I have already remarked that the efficient cataloguing of the images was chilling and your commentary on the images of Shara is disturbing.  I have already remarked on your willingness to keep the images over such a long period of time without destroying them.  It is apparent also that you had not forgotten about them because you accessed those images in order to transmit a couple of them only the year before you were arrested.

37The criminal law prohibits sexual offending and specifically sexual offending against children with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity.  It protects children from the harms which premature sexual activity causes, thereby protecting children from their own immaturity.  The prohibition is intended to deter others who may consider engaging in sexual activity with a child.

38The absolute prohibition on sexual activity with a child under the age of 16 presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm, which is long-lasting and serious and manifests itself in both physical and psychological forms. Therefore, the harm to your victims is presumed irrespective of whether a child purportedly consented or appreciated the acts in full in a particular case.

39The victim impact statements in this case stand as some of the most powerful I have heard. I commend the courage and dignity of the family members who came to court to participate in the process and I acknowledge the devastation you, Mr Benton, have wreaked on the complainants and their family which will not be easily repaired. It is apparent that your gross and widespread breach of trust has affected all of your grandchildren; all of whom were vulnerable in their own ways. It is apparent you will never have a relationship with your lineal family members again. I do not mention that as your loss, but as the wrench you have caused to them. Time and time again they spoke of the faith, trust and reliance they had placed in you. Tellingly, your daughter spoke of her suspicion that many of your actions amounted to a manipulation of friends and family simply to enable you to keep up the facade because of the lie you kept from all of them. I do not know where the truth of this lies. However in respect to the victims, I note they go beyond Andrea and Shara and extend to their brother Adrian,[6] to Simon,[7] to Lucas Mann,[8] to Kim and to Todd. And I note that Kim and Todd both feel a continuing guilt and anguish that they failed their daughters.

[6] A pseudonym.

[7] A pseudonym.

[8] A pseudonym.

40Years ago, it was observed by a Judge that the road to rehabilitation is often much harder for the victims than for the accused in sexual abuse cases of children.  It appears that the damage you have wrought on your own family has made this observation true.

41Your offending must be met by principles of just punishment, deterrence and protection of the community.  I denounce your criminal activity as abhorrent to all right minded members of our community.  Your offending must be met by stern punishment. And by that I mean imprisonment.

42I turn now to your personal circumstances.

43You are 67 years of age and were born in April 1952.  You are retired.  You had a hard childhood and described your father as “abusive, a drunk, gambler and wife beater”.

44You were one of four children and still have some contact with an older sister.  You grew up in Sydney and left school after the equivalent of year 10.  After some time working on the railways, you were conscripted into the army and thereafter volunteered.  You undertook postings in England and Cyprus and was transferred to the military police.  You told psychologist Carla Lechner you had seen 78 deaths and multiple traumatic events.  She concluded that you fulfilled the criteria for a diagnosis of Post-Traumatic Stress Disorder and major depressive disorder.

45You were married in 1970 and had three children.  Your wife left in 1980 when the children were still young.  Your wife had nothing further to do with the raising of your children.  You raised them with the help of your mother.

46You eventually left the Army in 1998 and worked as a security officer on shift work for 19 years.

47A grandson Kaiden,[9] who discovered the child pornography and reported it to the police, is your grandchild through your son Raymond.[10]  When he was a child, you obtained guardianship of him.  As I have alluded to, you have previously been regarded as an important member of the family.  

[9] A pseudonym.

[10] A pseudonym.

48Your own health has been poor.  You have had five operations on your heart and in 2014, you suffered a major stroke with partial memory loss.

49You have used your time in prison to your advantage.  You hope to become a peer listener and you have completed 11 separate programs in areas (particularly those beyond your knowledge and experience in life) to assist you in empathising with new prisoners and their problems.  You have completed nine university short courses and you keep busy with religious classes over a couple of different Christian faiths.

50Although you were not formally assessed, Ms Lechner concluded you to be of average intelligence.  Ms Lechner concluded that you previously suffered from paedophilic disorder but that it was not now apparent.  According to the psychological literature, she considered the description “regressed child molester” to be more fitting, and that you represent a low risk of reoffending.

51There is a major flaw in the use Ms Lechner’s opinion in the current proceedings.  The introduction to her report makes it clear that she believed all your offending occurred between January 2002 and July 2004.  Ms Lechner was unaware of charges that you had continued to keep photographs of your granddaughters and other young children and transmitted photographs in 2017. She was unaware that as late as 2018, you were in possession of child pornography, she was unaware that in the intervening years you created an online moniker for the purposes of expressing your paedophilic fantasies.

52In the circumstances, I consider Ms Lechner’s report to be incomplete and of little value in assessing your current condition and prospects for your rehabilitation.

53Moreover, Ms Lechner concluded that you would find your time in custody considerably difficult in light of your physical and mental health issues. Mr Marshall of counsel, whose plea on your behalf was sensitive to the victims and their family, disavowed any reliance on this conclusion.  In light of the use you have made of your time in prison, I consider this disavowal to be astute.

54The assessment of your prospects for rehabilitation is made more difficult due to the conclusion I have reached in relation to Ms Lechner’s report.  It is possible to conclude that your direct offending was opportunistic, occurred more than 15 years ago, and you will not be provided with an opportunity for such contact on your release to mix with young vulnerable children.

55Nevertheless, your paedophilic interest remained long-standing and unchecked until your arrest.  It is impossible for me to say whether the effects of age, ill-health and the passage of time that you will spend in custody together with the courses you are doing and the inevitable completion of the sex offenders program whilst in custody, will blunt your paedophilic desires.

56Moreover, it is unlikely on your release that you will have much if any family or community support.  The isolation that you face will be testing for you.

57In these circumstances, I must rely upon the deterrent effect of imprisonment, the prospect of the structure of parole and the regime of the sex offenders registration program to provide you with the mechanisms not to reoffend.  In the absence of any reliable expert material or other information, I can only assess your prospects for rehabilitation as fair.

58Mr Marshall conceded that you face a lengthy period of imprisonment but submitted that given your age, and your health, that specific deterrence may have less relevance.  Overall, Mr Marshall submitted that I should conclude that your offending was opportunistic and that the majority of it was completed by 2009.  Mr Marshall urged me to have regard to the principle of totality.  I consider that the sentence I impose must still provide a measure of specific deterrence, even if it is lessened.  The range of your paedophilic activity, and the long standing nature of it, require such deterrence.

59Mr Moore on behalf of the Crown, submitted that this is most serious offending; demonstrated by the gross and widespread breach of trust. The Crown called for stern punishment for your offending.

60For the reasons I have outlined, I do not consider that it is realistic to conclude that your offending had effectively stopped by 2009.  I will have regard to the principle of totality.  I must set appropriate sentences for each of the offences and, pursuant to the serious sexual offender provisions, there must be a presumption of accumulation of sentences for which you were sentenced as a serious sexual offender.

61I note that the Crown does not seek the imposition of a disproportionate sentence in this case.  I will not impose a disproportionate sentence.

62The sentence I impose are as follows:

63On Charge 1 you are convicted and sentence to a term of three years and six months' imprisonment.

64On Charge 2 you are sentenced to eight years’ imprisonment.

65On Charge 3 and each of charges 4, 5, 6 and 7 you are declared to be a serious sexual offender and I order that fact to be entered into the records of the court.

66On Charge 3 you are convicted and sentenced to three years' imprisonment.

67On Charge 4 you are convicted and sentenced to 18 months' imprisonment.

68On Charge 5 you are convicted and sentenced to 18 months' imprisonment.

69On Charge 6 you are convicted and sentenced to three years and nine months' imprisonment.

70On Charge 7 you are convicted and sentenced to 18 months' imprisonment.

71The base sentence on which these sentences build is Charge 2, the sentence of eight years imprisonment.  To that I order that one year of Charge 1 be served cumulatively on Charge 2 and all other sentences, I then order that one year of Charge 3 be served cumulatively, three months of Charge 4, three months of Charge 5, one year of Charge 6, and six months of Charge 7.  Each of those sentences is served cumulatively on Charge 2 and each other charge. 

72The total effective sentence is a sentence of 12 years’ imprisonment.  To that you must serve a minimum of 7 years and 10 months before you are eligible for release on parole.  I declare the presentence detention of 360 days reckoned as already served not including today. 

73You are to be registered on the Sex Offenders Registration list for life, you will be provided with a list of requirements for that in a moment.  You must acknowledge the form provided to your counsel that you have received this material.

74The 6AAA declaration is that but for the plea of guilty I would have imposed a sentence of 17 and half years with 12 and half years to serve. 

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