Director of Public Prosecutions v Gledhill
[2012] VCC 1018
•25 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00654
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN GLEDHILL |
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JUDGE: | HIS HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2012 | |
DATE OF SENTENCE: | 25 July 2012 | |
CASE MAY BE CITED AS: | DPP v Gledhill | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1018 | |
REASONS FOR SENTENCE
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Catchwords: 3 x sexual penetration of child under 16; 1 x making available child pornography material using a carriage service, and 1 x knowingly possessing child pornography; very early admissions and PG; volunteered to police re sexual relationship with 14-15 year-old boy; offender aged 20; became friends on chat site; boy was willing participant; offender had ceased accessing child pornography before arrest; had begun viewing it as isolated teenage homosexual in country town, bullied at school; engaged in therapeutic treatment on voluntary basis and made progress; moderate risk of re-offending and good prospects for rehabilitation; CCO with Sex Offender Program
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P O'Halloran | |
| For the Accused | Mr D Gibson |
HER HONOUR:
1 Benjamin Michael Gledhill you have pleaded guilty to three charges of sexual penetration with a child under the age of 16, one charge of making available child pornography material using a carriage service, and one charge of knowingly possessing child pornography. Charges 1 and 2 are representative charges which I shall address later in these sentencing remarks.
2 The maximum penalty for the charges of sexual penetration is ten years imprisonment, for making available child pornography 15 years, and for possessing such material, five years.
3 At the time you committed these offences you were aged 20, and you are now 21. Therefore you are not classified as a young offender, but because you are still a youthful offender significant importance should be given to your prospects for rehabilitation. The circumstances of the offending are that in about June 2011 you and the victim, then aged 14, began communicating on an online chat site. I shall refer to him as T. You told him you were 20 and he told you he was 14. Eventually you agreed to meet, and this took place some time between September and the end of November 2011, when T came to Melbourne from a country town. Depending on when this was, T was either almost 15 or had just turned 15. You drove him to a beach house on the Great Ocean Road where you stayed together for two nights. You both took part in sexual activity during that time, giving rise to Charges 1 and 2.
4 Charge 1 is made up of two incidents of anal sex whereby you penetrated T's anus with your penis. Charge 2 is made up of oral sex whereby you penetrated T's mouth with your penis. In his interview with the police T stated that the following day he felt "pretty indifferent and I suppose I just had a kind of good feeling, but otherwise I wasn't too worried about it." The point about that response is that while T was too young to have been able to consent to having sex he was not upset or traumatised by it. He has chosen not to provide a victim impact statement.
5 After this you and T remained in contact and in late October or early November he invited you to his house in country Victoria by arrangement, when his mother was out. You spent the night with him and during that time you had oral sex with him, penetrating his mouth with your penis. That is Charge 3. You ejaculated on his face and took a photo.
6
These matters only came to light after a police covert operative on
8 November 2011investigated the file sharing program called GigaTribe. The operative gained access to this program and then connected with a user whose profile name was Todd210. This was later found to be allocated to your internet account. Upon connection with you the operative obtained your password and gained access to your files. You had ceased using this program some time before you were arrested.
7 On 2 February 2012 police executed a search warrant at your home and seized your computer. At that time you disclosed to the police the offending with the victim. You were interviewed by the police that day. You made full admissions to the child pornography matters and volunteered all the information which led to the charges of sexual penetration, about which the police would not otherwise have known. The police told you they appreciated your honesty. You are entitled to a considerable discount because of that cooperation and also for your early plea of guilty at the committal mention stage.
8 The total of 1062 images were seized from your computer, as well as 33 videos and the examination of your computer revealed that you had used the GigaTribe program for a period of eight months during 2011. The images and videos were classified as falling into all five recognised levels of child pornography[1]. I viewed a small selection of the images and found they were representative of the unfortunately common forms of depraved images seen in this type of material. The children depicted were mostly boys and ranged in age from less than one year to 14. The Level 1 images showed children dressed, semi dressed, and naked, including infants in nappies. This is relevant because at the time of your arrest you were found to have been wearing a nappy.
[1]Level 1 – Images depicting nudity or erotic posing with no sexual activity
Level 2 -Images depicting sexual activity between children, or solo masturbation by a child
Level 3 -Images depicting non-penetrative sexual activity between children and adults
Level 4 -Images depicting penetrative sexual activity between children and adults
Level 5 -Images depicting sadism or bestiality
9 The images classified in Levels 2 - 4 include the penetration of children's mouths and anuses by other children, and both penetrative and non penetrative sexual activity with children by adults. The Level 5 images consisted of boys and some girls naked and engaged in bondage or being urinated upon. The fact that very young children and infants were depicted adds to the seriousness of the charges. The videos in that same classification consisted of children involved in sexual activity with animals, and sexual activity while being blindfolded, tied up, or whipped. One video showed a naked two year old girl wearing a dog collar put on her by a naked adult female drinking beer.
10 I now turn to your background and personal circumstances. In the plea made on your behalf Mr Gibson described your background and experience of growing up in some detail, because much of it bears on the reasons for your offending, and as to why prison may not be an appropriate disposition. You were the youngest of three children brought up in a shared custody arrangement for some years after your parents separated when you were two years old. You grew up in a country town but you moved with your mother to the outer suburbs of Melbourne when you were in Year 12.
11 When you were seven years old you were traumatised by witnessing the accidental running over of an infant by your mother, who was caring for the child at the time. Your mother in a letter to the court referred to the trauma in general terms, and stated that you had not been able to talk to her about it for fear it would upset her.
12 At the age of 13 you considered that you were homosexual and indeed you had been bullied at school because this was suspected by the other students, but it was not until you spent a year in Japan as a rotary exchange student during Years 9 and 10 that you acknowledged this. You had one long term relationship with someone who was six months older, and in Year 10 you told your mother and sister, as well as your friends at school, that you were gay. You considered that you were treated differently by your friends after that.
13 Partly because of this, it seems, you left school without finishing Year 12 and you completed a certificate in tourism, then you worked at McDonald's for two years, followed by telemarketing and market research work. For the last 12 months you have been employed as a console operator at a service station. Your plan for the future is to return to further education and you hope to be a town planner. You are interested in music and have taught yourself to play the piano, and you write music as well.
14 You used marijuana during your teens and ceased regular use a year before your arrest. When arrested you ceased altogether and no longer use it.
15 You have been seeing a psychologist, Dr Squirrell, since December last year on a voluntary basis for stress and mood management, as well as offence-specific work. A report was obtained from him and from a psychiatrist, Dr Kevin Ong. Both clinicians consider your diagnosis is that of paedophilia, non exclusive type, that is, it includes interest in adult males. Both also agreed that your prospects for rehabilitation are good because of your commitment to treatment, your frank and honest attitude, and motivation to abstain from further offending. This is in the context of your disclosures to them that you had known what you were doing was wrong and that in relation to the child pornography you had been addicted to it and you did not know why. You had regarded it as a massive secret and you had no one to whom to turn in order to deal with it.
16 You told Dr Squirrell that living in a country town you had felt constrained from discussing the matter even with any professional person for fear it would not remain confidential. It was this feeling of isolation as a homosexual teenager that encouraged you to find friends on the internet, leading to the intimacy with T. You had felt empathy with him, as he also felt isolated in a country town.
17 The other diagnosis is that of an anxiety disorder which Dr Squirrell considers will persist in the foreseeable future, and most likely worsen if you are incarcerated. He stated that your avoidant and dependant personality traits contributed to your offending in that your previous history suggests that you have struggled to form both friendships and intimate relationships with other young men of your own age. Dr Squirrell's confidence in your rehabilitation prospects seemed to be derived from your excellent reliability in attending treatment, and your open disclosures. He stated that you are firmly engaged in treatment and have a strong desire to develop insight into past behaviours, and have demonstrated a capacity to take appropriate responsibility for your offending. He said your mental state has improved and you tell him that you no longer use the internet. He said you have expressed remorse and that you do not minimise the seriousness of the offending.
18 Dr Squirrell offers all these matters as protective factors against re-offending, as well as support from your family and friends and the absence of any other anti-social or criminal behaviour. A number of them have written letters to the court in which they refer to their shock hearing of the offences from you, and that you have expressed your regret to them. Your own letter to the court is informative and sincere, and you expressed relief that the police caught you when they did, as you felt you had no way out.
19 These are all very serious offences which usually call for a custodial sentence to be served immediately. Mr Gibson who appeared on your behalf submitted that I should consider instead your suitability for the alternative disposition of a community corrections order in respect of Charges 1 - 3 and Charge 5, and a reconnaissance release order for Charge 4, which is a Commonwealth charge and so attracts the provisions of the Commonwealth Crimes Act 1914. In making that submission he relied upon the mitigating factors to which I have referred, as well as the risk that by reason of your very slight build and sexual orientation you might be in danger of abuse in prison.
20 It was submitted on behalf of the prosecution that a term of immediate custody was appropriate with a range of between three and four years for the head sentence, and a non parole period of 18 months to two years. I was referred to a number of authorities dealing with some of the same issues as have arisen in this case. I will start by saying that general deterrence is a factor of prime importance in cases such as this. The laws which proscribe both types of offending which you committed are designed to protect children from the harm associated with their exploitation as victims of the creation of pornography, and as victims of sexual activity, for which they are too young to give consent.
21 To gain access to and to possess child pornography, as you did, is to contribute to the creation of a market in the depraved exploitation of children, with capacity to cause great harm to them. Similarly it has been considered by Parliament that harm can be caused to children who take part in sexual activity when they are too young, as the boy was in this case. Even when a child appears to consent as he did, that cannot be treated as a mitigating factor, and it does not make the crime less serious. It has been said by the court in the case of Rigall that even where a young person does appear to want to engage in sexual activity:
"There is a duty cast upon others to refrain from encouraging or acting upon those wishes."
22 The court went on to say:
"The more mature the other person, meaning the perpetrator, the greater the degree of self control which should be demanded of them."
23 As I said before, you were aged 20 at the time, an adult, but nevertheless belonging to a peer group of a not dissimilar generation to that of T. While clearly you knew what you were doing was wrong, and you should have exercised self control, the expectation to do so would have been greater had you been an older person. You were perhaps not a great deal more mature than T, although he as a school boy would likely have been impressed by your age. The circumstances of the offences would have been more grave if T had been younger. As it was he turned 15 in October, so he was about a year short, give or take a month, of being able to give consent.
24 In addition there is no evidence that T suffered any harm. However I do not place great weight on that matter in isolation, as there is also no clear evidence that he did not suffer any harm, apart from his own statement to which I have already referred. But I do take it into account in combination with the particular circumstances of this case.
25 As I said, it was submitted by the prosecution that you should be sentenced to immediate custody, however I am satisfied that taking into account all the circumstances pertaining to the offending against T, they bring about a reduction in your moral culpability which when combined with the mitigating factors to which I have already referred, as well as the very likely deleterious experience of imprisonment in your case, justify a non custodial disposition.
26 As to the circumstances pertaining to the child pornography offences I have already referred to the importance of general deterrence as the prime sentencing factor, in cases such as this where similarly appalling images are seen. As to specific deterrence, your good prospects for rehabilitation, and the protective factors in your favour mean that your risk of re-offending is reduced, although this would be subject to your continued treatment. It follows that the protection of the community would result from this continued treatment, much more effectively than if you were sentenced to prison to await the availability of a place in the sex offender treatment program in custody.
27 To enable this treatment to continue and to address your offending in other ways as well, you have been assessed as suitable for a community corrections order. I understand that you have agreed to be bound by its conditions. This order will apply to all the charges. Although Charge 4 is a Commonwealth charge, the Commonwealth Crimes Act was amended in March this year to permit a community corrections order to be imposed for a Commonwealth crime.
28 The writer of the report who assessed you has concluded an assessment of your risk of re-offending as moderate, which seems not inconsistent with the opinions of Dr Ong and Dr Squirrell. It follows that you will be under supervision whilst on the order, and the other conditions will include a hundred hours of unpaid community work to be performed over six months, continuing treatment with Dr Squirrell, and participation in the sex offender program as directed.
29 Perhaps I will ask you to stand at this point please Mr Gledhill and I will just explain the rest of the conditions to you. The CCO will begin today and it will last for two years. I understand that you have been informed that a home visit will be conducted within six weeks of this order, but initially you must attend an induction appointment that is fixed for 26 July, tomorrow, at 10 am at the Dandenong Community Corrections Office which is at 46 - 50 Walker Street, Dandenong. As one charge is a Federal charge it is necessary for you to be on a separate Community Corrections Order for that charge. The conditions are identical and that order will run concurrently with the State Community Corrections Order.
30 This order is a punishment as well as a means by which your offending and your rehabilitation can be addressed. It requires you to give up your time and put something back into the community by way of recompense. If you were to re-offend during the two years of the operation of the order, or failed to comply with your obligations, you would be in breach of the order and you would have to have returned to court to be re-sentenced.
31 The prosecution seeks an order under s.464ZF of the Crimes Act that you provide a forensic sample of saliva and through your counsel you do not oppose that order being made. I make that order and must advise you that the police have the power to use reasonable force to obtain the sample, but I trust that will not be necessary.
32 The prosecution also seeks an order for forfeiture of items, including a computer, and mobile phone, and related items, and again you do not oppose that and I make that order.
33 If you had pleaded not guilty to these charges I would have sentenced you to prison for two and a half years with 15 months to be served before being eligible for parole.
34 Finally it is mandatory that you be on the sex offenders registry for life, and I make that order. You must report your details every year to the police. You will be given a piece of paper to that effect in a moment, Mr Gledhill.
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