Director of Public Prosecutions v Gledhill

[2017] VCC 1521

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-01160

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN MICHAEL GLEDHILL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 October 2017
CASE MAY BE CITED AS:	DPP v Gledhill
MEDIUM NEUTRAL CITATION:	[2017] VCC 1521

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	Ms E. Linfoot	Office of Public Prosecutions
For the Accused	Mr A. Brand

HIS HONOUR:

1Benjamin Michael Gledhill, you have pleaded guilty to four charges of using a carriage service to solicit child pornography, three charges of using a carriage service to transmit child pornography, one charge of failing to comply with reporting obligations, two charges of using a carriage service to cause offence, one charge of using a carriage service to access child pornography, one charge of knowingly possess child pornography and one charge of possessing a drug of dependence.  Those crimes carry maximum penalties of 15 years, 15 years, five years, three years, 15 years, ten years and a monetary penalty respectively.

2You are 26 years of age.  I accept that you pleaded to a settled indictment and therefore treat the plea as being made at the earliest reasonable opportunity. 
I accept for the sentencing purposes that you have appropriate remorse and you must, of course, get the utilitarian benefit of those pleas of guilty.  You are still a relatively young man and can be treated as a youthful, at least, offender. 

3Insofar as your antecedents are concerned your previous criminal history is not of great duration but is of real concern.  The situation is, Mr Gledhill, that you have done it before.  On 25 July 2012 you were placed on a community corrections order for two years for charges of sexual penetration of a child under the age of 16 years and knowingly possessing child pornography and using a service to make child pornography available.  I accept that, insofar as that disposition was concerned and I interpolate that I have read the sentencing remarks of Her Honour Judge Wilmoth, that the charges of sexual penetration were apparently volunteered by you. 

4The fact of the matter is though during the course of that hearing the Crown made submissions that, as they were able to at that time, that the offending warranted a period of years of imprisonment.  Whilst that obviously did not occur, for the reasons Her Honour outlined, she must clearly have made it apparent to you what the consequences of conduct such as this might well turn out to be.

5This will be a very truncated summary of the offending and I direct that the Crown opening and the schedule thereto be annexed to these, my sentencing remarks and that the exhibited copies remain upon the court file.  In very short compass what occurred was that in December 2016 members of the Australian Federal Police executed a search warrant at your then home address.  During the course of that they seized items being an ASUS laptop, an Apple iPhone, seven anime images and one small bag containing cannabis.  Obviously examination were made of those items and these charges are the direct result.  You were also subject to the Sex Offender's Register, from which you were obliged to report for life from the offending back in 2012 and I will come to that shortly.

6The charges involve soliciting material, transmitting it, possessing it and accessing it.  I propose to just simply, for these purposes, read the schedule that was attached insofar as those offences are concerned.  Charge 1 was a charge from 6 September and 18 October 2015 where you were discussing with a Mr Brown a sexualised conversation about children.

7Charge 2, arising from 6 September, 17 October and 18 October 2015 which involved discussion about the sexual abuse of dogs and children and you making comments about "fucking a child, kicking a child" and those such matters.  The contents of those discussions is disturbing and bearing in mind what I have direct insofar as the Crown summary is concerned, I do not propose to go into them in detail.  The matters within it were clearly, I would have thought, matters that you would have no intention of ever carrying out but as counsel for the Crown has pointed out, it is the sort of thing that debases children.

8Charge 3, of soliciting is you asking a man for "young boy" pics and another person for the same sort of material, that is in December 2015.  Charge 4,
19 March 2016, 21 March 2016, again asking for photographs of children in pornographic situations.  Charge 5 of transmitting is one where you, on 22 May and 28 May 2016, which is sexualised discussion about roleplaying and the treatment of children.  Within that there it was also the situation where, as
I understand it, you sent 38 child pornography images with 27 of them being in category 5.

9Charge 7, was soliciting.  Again questions by you in August and September 2016 requesting other people to send you child pornography and sexualised conversation and that went on, insofar as that charge is concerned, until November 2016.  I interpolate at this stage that I am aware that the majority of these charges are, in fact, rolled up counts.  Charge 8 of transmitting is you sending child pornography images and discussions about sexual abuse of children in around about August 2016 to 22 October 2016.  That in very, very brief and sanitised compass are the descriptions of that offending.

10The other charges are the breach of the Sex Offender's Registration Act where you had not advised of a change in personal detail which involved you being able to use equipment to access child pornography and indeed in the situation where you had not disclosed that material to the authorities you did, in fact, transmit child pornography.  In this situation, as I indicated yesterday, is pretty much the least of your worries and I will deal with that shortly.

11Charge 11 of accessing child pornography.  That involves you having accessed a number of extremely depraved, is probably a fair word, videos of children and the sexual abuse of children and the Crown opening describes those involving the sexual assaults and degradation of, indeed, babies. The videos referred to in that charge are also contained within the possess child pornography charge that is laid under the State Act.

12Insofar as the State is concerned with Charge 12 of knowingly possess child pornography there was something in the order of 350 images and videos, a significant number of which were Level 5. 

13Clearly as your counsel pointed out, this is not a mathematical equation. 
The numbers are relevant matters and I am well aware of the authorities as the various matters that have to be taken into account in this sort of offending.  It is simply a balancing act which I do not propose to go into in any detail as it would take about 300 pages to write it all out.

14Charge 13 is possess a drug of dependence of which is of no real consequence in this matter.

15The situation is that you are to be sentenced on Charge 12 as a serious sexual offender because of the sentences I will be imposing on the other charges.  The Crown did not ask for a disproportionate sentence and I would not give one. 
I am aware that the community protection becomes a principal sentencing purpose and I am also aware that such a sentence it so be cumulative unless otherwise ordered.  I take those matters into account.

16The offending has to be regarded as serious, of course, calls for the application of general deterrence which is paramount in a situation such as this and specific deterrence in your case because you have done it before.  There must also be denunciation.  There must be appropriate punishment bearing in mind the protection of the community.  I accept that you are probably a low risk of active offending against human beings but you have to be regarded as a high risk of re-offending in this way bearing in mind your history.

17There is some double up within the charges and it makes it difficult and I am looking at questions of totality and overall course of conduct rather than trying to make some definitive assessment of each charge.  I am not going to go into great detail about it all because I do not see that it really achieves anything in this scenario.

18The numbers of images, as I have said, are relatively low.  It was over a 14 month period and a number of them are of a very serious nature indeed when one looks at it.  The situation is that gaol is inevitable and significant gaol it must be.  It is clear, and it is conceded, that it is outside recognisance range and clearly there is no CCO involvement in all this and the principles involved in Verdins have no application for you so far as this matter is concerned.

19Tendered on your behalf were some references and I take those very much into account and the fact that you still have support from family which gives some confidence I suppose, in your endeavours to rehabilitate.  I take into account that the community corrections order that you were given back in 2012 you were able to complete.  It would appear you have completed a sex offender's program which did not work obviously, if you did do it but it is to your credit that you were able, under supervision, to get through it without being charged with any further offending.

20I obviously take into account your plea of guilty in the way that I have described and your still relative youth.  There was also a report from Mr Cummins, psychologist, which has been exhibited which I will refer to in a moment.  It is clear that you will be doing the sentences I impose at Ararat which technically is a protection prison and I take that into account. 

21I also take into account that since leaving school you have had a good work ethic, that you have now agreed to counselling, that you have some, if limited, insight into the offending and the consequences of the offending that you have committed.

22The report from Mr Cummins goes into detail about history which I do not thin kin these circumstances assists.  What it does say, is that you have been diagnosed as paedophilic by a number of people.  It seems clear that when you did the community corrections order, a Dr Squirrel, opined "That Mr Gledhill's prospects for rehabilitation were very good" and noted a number of protective factors including "Mr Gledhill's motivation for offence specific treatment.  In fact he has no other anti-social or criminal history.  That "very good" clearly was not the case however I do understand that Dr Squirrel said he did not need to see you any longer and that assistance stopped.  What effect that may have had on the resultant offending would be something of a guess.

23A Dr Ong also thought that your prognosis was good insofar as the future was concerned back in 2013, 2014 when you were undergoing that CCO.

24Mr Cummins says that you presented as a relatively naïve and relatively immature interviewee and describes that you still have family support from your mother and other members of the family.  That you were doing relatively well with all this until your paternal grandfather died around April or May 2016.  However it is to be noted in that regard that this offending dates back into 2015.

25You told him, and I accept this, that you missed, having finished the CCO, not having a case manager to speak to on a regular basis and that will be a matter for the Parole Board and obviously these sentencing remarks will be sent to the Parole Board in due course.

26Mr Cummins said that, "It was quite apparent that he presented as an emotionally needy, dependent, unassertive and vulnerable young adult".  I take all those matters into account in how hard gaol, I have no doubt, has been and will be for you.  He also, insofar as risk is concerned, puts you in the moderate to high risk of offending again in this way.

27In a nutshell that is really what this sentencing process is all about.  General deterrence have to play a very significant part in all this.  It must be made clear to those of like mind of the consequences of supporting this trade in children will meet with dire consequence.  It is your age which saves you from an even more significant or severe sentence.

28I take into account, very much, the question of totality and the desire not to impose what might be seen as a crushing sentence on a relatively young man but significant sentence it must be.

29What I will do now is go through the sentence for each charge and what I intend to achieve and then I will discuss with counsel how best to go about it.

30Your prospects for rehabilitation are really up to you, Mr Gledhill, and perhaps the authorities at a later time.  The risk of you re-offending, as has been described, are moderate to high and there is not much else I can say.

31Charge 1, and I will do this very slowly.  Charge 1, 18 months.  Charge 2,
18 months.  Charge 3, 12 months.  Charge 4, 12 months.  Charge 5, 24 months.  Charge 6, State matter, three months.  Charge 7, 24 months.  Charge 8,
30 months.  Charge 9, three months.  Charge 10, three months, which I have not even - they involve some bizarre conversations about animals.  Charge 11, 18 months and Charge 12, 36 months.  Charge 10, three months if I did not see that.  Charge 13, you are convicted and discharged. 

32I will be directing that the sentence imposed on Stage Charge 6 be served concurrently with the sentence imposed of 36 months on State Charge 12.  That gives an effective State sentence of three years. 

33I direct that the sentence on Charge 1 commence 48 months from today. 
I direct that the sentence on Charge 2 commence 45 months from today.  The sentence on Charge 3 commence - and this can be altered if we need to, all right?  I am not putting this into the record yet.  Charge 3, 48 months from today.  Charge 4, 45 months from today.  Charge 5, 30 months from today.  Charge 7, 24 months from today.  Charge 8, 12 months from today.  Charge 9, today.  Charge 10, today.  Charge 11, three months from today.

34So in Commonwealth terms and my calculation, starting from today, adds up to five years and six months.  That commences today.  The State charge, which causes the problem, is three years.  It seems to me, Mr Brand and Mr Linfoot that what I should do in this situation, even though it is misleading because of the difficulties with this, is that I will simply - initially I was going to start the State sentence and then build the others on top of it but it seems to me that is fraught with danger because of parole periods and I am concerned - I cannot, as
I understand it, get a global parole period, I cannot do it.

35So what I am going to do, and I am explaining it - or what I am proposing to do, and I will explain this very clearly because normally there has to be accumulation between State and Commonwealth.  How (indistinct) that is beyond me but I am going to, in that scenario, rather than tack two and a half years of the Commonwealth onto the State I am going to simply make the State three years and leave it at that, commencing today. 

36So that leaves you with a State charge which will be completed prior to the expiration of the minimum term on the federal matters and what I am proposing to do is the five years and six months on the federal matters, impose a minimum term bearing in mind the arguments and submissions put by Mr Brand and his youth of three years and three months.

37On my calculation that would mean that the State sentence would have expired before he becomes eligible for parole under the Commonwealth and in these circumstances I would not be giving a minimum term on the State sentences for those reasons. 

38Now I also declare, obviously, 311 days as having been served under this sentence and a s.6AAA in this scenario is meaningless and I do not have to do it anyway, so I am not going to.  Does that make sense?

39MS LINFOOT:  Yes, Your Honour.

40HIS HONOUR:  If you have got any trouble with anything, tell me now because ‑ ‑ ‑ 

41MR BRAND:  No.

42HIS HONOUR:  ‑ ‑ ‑ I have been through this about five times.

43MR BRAND:  Your Honour, I've lost track of the maths but it seems ‑ ‑ ‑ 

44HIS HONOUR:  Well we make it clear that I do not know whether you want me to stand down while you do the maths but my calculations are that the Commonwealth sentences start today all right?

45MR BRAND:  Yes.

46HIS HONOUR:  So you have got three months starts today.  You have then got an 18 months starts three months from today.

47MR BRAND:  Yes.

48HIS HONOUR:  And away you go.  The others will automatically be running with each other and what I have tried to do, bearing in mind they are separate offences though there is overlap.  Really, what it comes down to is there is about three to six months cumulative, adding up as it goes on.  If that makes sense?

49MR BRAND:  Well ‑ ‑ ‑ 

50MS LINFOOT:  Your Honour, I don't have - I don't see any issue with the structure.  I haven't obviously checked the maths but in terms of the structure that seems technically ‑ ‑ ‑ 

51HIS HONOUR:  Well I am relatively confident of the maths.

52MS LINFOOT:  Yes.

53HIS HONOUR:  I am starting some at different times because of the length of the sentences.  I mean I cannot start a 30 month sentence, you know, three years from that - so I have tried to structure it like that.  Now I think it is right.  So what I will do is I will just stand down.  I will do it in that form unless I hear - unless you want five minutes to think about it or ‑ ‑ ‑ 

54MR BRAND:  No, no I ‑ ‑ ‑ 

55HIS HONOUR:  Look I mean - I have made it really clear what I am trying to achieve.

56MR BRAND:  Yes.

57HIS HONOUR:  If it turns out that there is a problem or somebody realises there is a problem I can amend it any time.

58MR BRAND:  Yes.  I have no doubt that if there is ‑ ‑ ‑ 

59HIS HONOUR:  Section 104(a), I call into aid often.

60MR BRAND:  Yes.

61HIS HONOUR:  To fix up errors.

62MR BRAND:  Yes.

63HIS HONOUR:  So that ‑ ‑ ‑ 

64MS LINFOOT:  Your Honour, the only matter I'd raise is the s.6AAA statement.  Ordinarily those are still announced in relation ‑ ‑ ‑ 

65HIS HONOUR:  Not by they're not.  Not in Commonwealth matters.

66MS LINFOOT:  It's a matter for Your Honour.

67HIS HONOUR:  No I cannot, how can I do a s.6AAA ‑ ‑ ‑ 

68MS LINFOOT:  I was only ‑ ‑ ‑ 

69HIS HONOUR:  ‑ ‑ ‑ where you have got State and Commonwealth sentences on the one indictment where there is different sentencing principles involved?

70MS LINFOOT:  I'm not disputing that, Your Honour.

71HIS HONOUR:  That is why I am not doing it.

72MS LINFOOT:  The common (indistinct) is that it should be - but it's a matter for Your Honour.

73HIS HONOUR:  No I know that.  I do not do it, never have.  Particularly when there - if it was just the one Commonwealth matter I may well do it just to indicate the benefit of pleading guilty.  I am sure Mr Brand has explained to him what would happen if he lost a trial.  It would be a lot more than this.  That is what it is for.

74MR BRAND:  He's got a fair idea.

75HIS HONOUR:  Yes.  All right, there is no other orders I have to make?  You have got your disposals and everything else?

76MS LINFOOT:  Yes, Your Honour, they're done by consent.

77HIS HONOUR:  All right.  I do not need to make those orders then.

78MS LINFOOT:  No, Your Honour.

79HIS HONOUR:  Yes all right.  Look, in this scenario rather than - he can stay there so Mr Brand can talk to him, all right? 

80MR BRAND:  Thank you for that.

81HIS HONOUR:  No, no normally I have to wait while you go but this time he is all right?  Just let Mr Brand have a yarn to him.

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