Director of Public Prosecutions v Holman
[2022] VCC 2293
•14 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00518
| DIRECTOR OF PUBLIC PROSECUTIONS |
| (CTH) |
| v |
| BENJAMIN HOLMAN |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2022 | |
DATE OF SENTENCE: | 14 December 2022 | |
CASE MAY BE CITED AS: | DPP v Holman | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2293 | |
REASONS FOR SENTENCE
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Subject:Sexual Offending
Catchwords: Online communication with Undercover operative --- Search of premises yielded number of devices with Child Pornography --- Offender made videos of himself at shopping centres squirting white liquid on girls and young women to simulate ejaculation --- Fetish Disorder --- No prior offending --- Early plea of Guilty --- Genuine Remorse --- Already engaged in Offence Specific Treatment --- Difficulties in Custody
Legislation Cited: Sentencing Act 1991 (Vic) -- Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Boulton v The Queen [2014] VSCA 342 -- R v De Simoni (1981) 147 CLR 383 -- Xiao v R [2018] NSWCCA 2 -- Worboyes v The Queen [2021] VSCA 169 -- R v Verdins [2007] VSCA 102 -- CR v R [2020] NSWCCA 289
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Manning | CDPP |
| For the Accused | Ms G. Morgan | Slades & Parsons Solicitors |
HER HONOUR:
1Benjamin Holman, on 24 October 2022 you pleaded guilty to a range of sexual offences including 27 sexual assaults and 7 other sexual offences pertaining to the production, possession and transmission of child abuse material online.
2You are now 31 years of age. At the time of the offending you were between 27 and 29 years old.
3This offending came to light when you engaged with an undercover police officer in sexually explicit online communications. You made graphic, sexual comments about underaged girls and sent to that officer two videos with sexual content relating to children. You also you requested similar material from the officer.
4As a result, police executed a warrant at your home. They seized numerous electronic devices on which they found an array of material founding these charges. Most notably, perhaps, they found 27 videos recorded by you and involving you following girls and young women around shopping centres before you squirted them with a white fluid from a syringe, to appear as if you had ejaculated on them.
5In addition, they located hundreds of files containing images and videos of children collaged together with adults engaging in sexual activity, created by you in such a way to make it appear as if the child was engaged in the sexual activity. They also located 93 images of other child abuse material.
6The specific offending is as follows.
Using Carriage Service to Cause Offence
7You registered a profile “legginsluver” with iMGSRC on 25 January 2021. iMGSRC is a Russian based image-sharing website where users can upload, access, view and save images and leave comments.
8Your email address was hidden from public view, though the profile was registered with an email [email protected] which was linked to your phone. Your profile picture was a pubescent girl.
9On 25 January 2021, you posted 3 explicit comments on albums shared by other users. The comments were directed at young girls aged between 12 and 14 years old, two in school uniform.
10On 12 March 2021, you posted two further comments on photos of two girls. Both photographs appeared in an album titled “Candid 7/8yo girl in red legging pants”.
11Those 5 comments form the basis of Charge 31 – Using a Carriage Service to Cause Offence.
Use Carriage Service to Transmit and Solicit Child Abuse Material
12On 15 March 2021, an undercover operative commented on an image you posted depicting two prepubescent girls and asked you to contact him.
13On 17 March 2021, you emailed the operative as “John Anderson” using the relevant email account. You told the operative you loved young teens in tight leggings, and that you used the messaging service Telegram. You later provided your Telegram username “luvleggings”.
14Telegram is a cloud-based communication application which allows phone, video and text communication between users. It is advertised as a secure end-to-end encryption service where content can be set to self-destruct or expire. The service is free and only requires a username and phone number.
15After exchanging usernames, you and the operative continued your conversation on Telegram. During that discussion:
(a) You said you loved girls, did not have many naked, but had lots of “young candid”. You said you were not at the stage of masturbating in their presence, but admitted using a syringe to spray their bottoms.
(b) The operative requested any videos or pictures and you sent a video depicting you following two young Asian girls in denim shorts in a shop. You sprayed a white fluid onto the bottom of one of the girls. You continued to follow them. The 2-minute video has been classified as Category 2 child abuse material. You told the operative this was “Teen Asians in tight shorts”.
(c) You said you edited TikTok videos and sent a second video to the operative. The 15-second recording was split, with one half of the screen depicting a girl aged approximately 15 to 17 wearing leggings and dancing. The other half of the screen depicted an adult female in similarly coloured leggings being vaginally penetrated by an adult male’s penis. The purpose of the video was to convey the impression that the girl dancing is the same female engaged in the sexual activity. The video has been classified as Category 2 child abuse material.
16Those two transmissions are the basis of Charge 32 – Use Carriage Service to Transmit Child Abuse Material.
17After sending the material, on 17 March 2021 you asked the operative “What do you have mate..?” The operative said he had lots of “hard core preteen” and you replied, “I like!!” When asked if the syringe video was made by you, you said you did not like admitting anything online, especially since you had not received anything from the operative. You said, “If it was me, it would feel terrifying but the blood would be pumping hard, you try so hard not to let anyone else see you do it but you want to find the perfect place to spray”.
18On 22 and 24 March 2021 you told the operative you deleted your history every so often. You said “... I just close my chat groups every so often unless I know them properly, do you have any content? Cause you deff made me nervous asking me questions and not sending any content lol”. The request for material in this comment, and the comment on 17 March form the basis of Charge 33 – Use Carriage Service to Solicit Child Abuse Material.
Execution of Search Warrant
19That communication rightly made you nervous. It was as a result of that contact police executed a search warrant on your premises on 25 May 2021. They seized your Samsung mobile phone, eight memory cards, a Samsung Galaxy Note 20 phone, a Samsung tablet and GoPro camera stored together in the bottom drawer of a tool chest in your garage, and a SanDisk Memory card in the ashtray of your car.
20Investigators were told that you had taken items to a friend’s house from 16 May 2021. As a result, they attended a separate address and seized items stored by you in a container. Investigators then seized six USBs, dosing syringes (one of which contained a white substance), a Samsung tablet, three Samsung phones, and three laptops.
21In compliance with a court order, you provided passwords to your devices, applications and accounts.
22On examination those items revealed the following.
Summary of offending
Syringe Videos
23There are 27 “syringe videos” which form the basis of the 27 sexual assault offences – Charges 1, 4-27 inclusive, and 29 and 30. These videos were located on your primary phone, two Samsung tablets and the SanDisk SD Card.
24The videos all follow a similar pattern. You identify girls and young women, almost always in leggings. You follow them for a period of time. When you get close enough you spray them with white fluid from a syringe. You invariably spray them on their bottom, though sometimes hitting their legs. You at times followed children or girls in company with their parent or other adults. On one occasion you followed a young woman into the car park, and on another occasion you followed a girl in a family group into a laneway. An adult male turned around and looked at you, but you kept following. On one occasion you sprayed two girls who were in company with the same adult male.
25The videos ranged in length from 16 seconds to 5 minutes and 21 seconds. You continued to follow most of the victims after you had sprayed them. Most victims did not react. They appear not to have noticed your attention or the fact they had been sprayed with the white fluid. There was only one occasion when one child looked around.
26The recordings occurred between 8 September 2018 and October 2020. On some occasions you made several videos on one day, at times spending up to four hours at the shopping centre. On 7 March 2020 you also recorded 57 videos at a shopping centre and in nearby streets where you followed teenage girls and young adult females. Six of those involved the syringe style sexual assault. Between 1 October 2019 and 25 May 2021 you made 13 recordings on unknown dates.
Produce Child Abuse Material
Filming of Syringe Videos
27Seven of the syringe videos depict a child victim. The recording of that conduct therefore constitutes the production of child abuse material and forms the basis of Charge 2 – Produce Child Abuse Material. It was one of those videos which was sent to the undercover operative.
Morphed Images
28In addition to the charges which emanate from the syringe videos, you have also pleaded guilty to two offences of Producing Child Abuse Material. One charge relates to the production of still images while the other relates to the production of videos.
Still Images
29In relation to the still images, you morphed innocent images of a child or children which you sourced from the internet, with a superimposed image of yourself naked and holding your erect penis, or other adult males onto the images of the child. In some images the penis is ejaculating. The images are designed to make it appear that the child is performing or engaging in sexually explicit acts with the male/s.
30Those images were made by you on 38 occasions between 8 October 2018 and 7 April 2020. The children depicted are aged between approximately 5 and 17 years old. They are almost always dressed in leggings. There were 193 images created which are classified as Category 2 child abuse material. The files were saved on the Samsung Tablet located in the tool chest in your garage, and on a Samsung Tablet located in the plastic tub at your friend’s address.
31That offending is the basis of Charge 3 – Produce Child Abuse Material.
Video Collages
32In a similar fashion, you sourced innocent videos of children from the internet or social media sites and spliced them with an adult pornographic video with people often wearing clothing resembling the child’s clothing. On some occasions the video was of yourself ejaculating onto a mannequin found in the garage at your house. The purpose of the collage is to give the impression that the child depicted on one side of the screen is engaging in the sexual activity depicted on the other side of the screen.
33Between 23 June 2020 and 24 May 2021, you created 191 Category 2 videos across 64 occasions in this way. That offending is the basis of Charge 28 – Produce Child Abuse Material.
34The children depicted were between approximately 6 and 17 years old. The videos range in length from 8 seconds to 1 minute 24 seconds, and were regularly created between the hours of 9.00 pm and 1.00 am. The files were located on your primary phone and on the Samsung tablet and Samsung phone in the tub at your friend’s address.
Possession of Child Abuse Material
35In addition to the material you produced yourself, police located other child abuse material on 11 different devices. There were 924 items of child abuse material found, including 32 videos. That material is the basis of Charge 34 of Possess or Control Child Abuse Material obtained or accessed using a carriage service.
Summary Offence
36An ammunition magazine containing seven cartridges was located in your vehicle. You told police you had been hunting and had left the ammunition in your pocket and forgot about it. You found the ammunition at work and placed it in the glove box of your car and once again forgot about it. That is the basis of Summary Charge 6 – Fail to Store Cartridge Ammunition in a Safe Manner. You held a valid firearm license at that time.
Investigation
37
During the search of the shed in the backyard, police located a disassembled female mannequin underneath a tarpaulin on the floor. The mannequin had a
5-10 cm drilled hole in the vagina area. Approximately 32 pairs of female leggings and a bra were located in bags in the garage.
38In the driver’s door tray of your vehicle, investigators found a small container holding a thick, white milky substance. A parcel under the driver’s seat was addressed to you and contained leggings.
39You participated in a recorded conversation during the search but denied having any devices which contained child abuse material. You admitted using Telegram but denied exchanging any child pornography, and you admitted the John Anderson email was linked with your phone but told police your partner did not know about it and it was used for adult pornography only.
Interview
40You completed a Record of Interview on the same day and repeated denials about child pornography. You said the leggings in your garage were for escort services to wear, and stated the small sizing was a mistake. You denied the mannequin represented a child but admitted you purchased it and put leggings on it. You said you hid it because your partner did not know about it.
41You told police you had a fetish for leggings and other clothing. In response to questions about your comments made to the undercover operative about young girls you said “I just like clothing. … I’m not into young girls. I just like clothing, just that’s it…”.
42You stated you felt like an absolute idiot, that you did not feel good about yourself and regretted a lot of things. You said you felt shocked and scared.
Further Forensic Analysis
43Investigators located a “Secure Folder” on your primary phone. Telegram was stored within it and was password protected. A number of photo albums were also hidden. The Telegram application was linked to both the “luvleggings” profile and your phone number. The email account used to contact the undercover operative was also linked to the phone.
44Applications installed on the phone included a video editor and screen recorder application, a TikTok video downloader, a GoPro application, and a video collage application. Messages on the phone were consistent with use of the Telegram application in late 2020.
45The analysis of the various devices and accounts revealed a digital footprint of your conduct from September 2018 until arrest, which included videos and images taken from behind persons inside shops including young females in leggings, images of young girls wearing leggings or bikinis in public places, images of a sprayed substance resembling ejaculate and numerous images of you clothed and naked posing with your penis exposed against a blank background.
46The John Anderson email account was created on 28 March 2020. In October 2020, you used that email address to create an account with the Candid Teens website. The website is described as a place where users can share their best voyeur pictures and find ‘people they like’.
47On 1 November 2020, you signed up to a free trial of ProtonVPN. Virtual private networks (VPNs) are used to assist with online privacy and anonymity.
48On 7 February 2021, you used the John Anderson email account to send an email to another iMGSRC.ru user stating that you were glad the user liked your photo of the girl in the yellow leggings. You said girls in tight leggings were your favourite.
Assessing the Objective Gravity of Offending
49Assessing the gravity of your offending has not been easy. Taken individually I accept the argument made by Ms Morgan on your behalf that various of the offences here are lower-level examples of specific offending. For example, Charge 31 of using a carriage service to cause offence relates to five comments made within days of each other and to another adult. Charge 33 of solicit child abuse material reflects two requests made within a short period of time and to the one adult. It was not an approach to a child with a request to take photos or videos of themselves.
50In relation to the produce child pornography charges reflecting the morphed images (Charge 3) and spliced videos (Charge 28), no child has been involved in that activity. No child has been exploited for that purpose. With one exception, no child is aware they have been used as a basis for creation of apparently sexual material. That too makes those lower-level offences, in my view. To put simply, using pictures and videos of children found from existing non-sexual images is far less harmful than real children actually being engaged in the production of sexual material. I accept the argument made by Ms Morgan, and fairly acknowledged by Mr Manning for the Prosecution that the presumption of harm is displaced.
51The one victim impact statement arose in circumstances where police made contact with a victim they were able to identify. That teenage girl does not want her victim impact statement read in court and for those reasons I will not refer to it in detail. I have taken its contents into account in particular her comments that she feels unhappy that an image of her engaged in sport was made to look sexual.
52Even the sexual assaults, if looked at individually, can be described as lower end for similar reasons; they do not involve invasive touching of the victim’s body; the victim in that way does not experience the physical and psychological reaction which is common in sexual assault; the contact was over clothing, and almost all victims seem unaware they have been targeted. In this way again I accept Ms Morgan’s argument that the presumption of harm is rebutted.
53The Prosecution concede that harm depends on awareness of the offending. In this case there is no evidence of any of the sexual assault victims being aware of you following them or of the fact they have been squirted, let alone the sexual nature of that act.
54However, it is the global picture which emerges that is a disturbing one. There is a concerning number and diversity of offences and there have been hours taken in filming, in editing, and in producing child abuse material. The offending has occurred over a period of years.
55Speaking generally, the reliance on child pornography by an adult for sexual gratification of itself is serious. When an offender steps beyond the online version and starts to pursue real children and young girls it reflects an escalation in offending. That is what has happened here. You have targeted real children and young women. In that sense, your behaviour in the sexual assault charges is very concerning.
56The aggravating features of the sexual assaults also include the repetition of your behaviour over a period of approximately two years. At times you spent hours at a shopping centre pursuing that goal. You obviously arrived prepared with your syringes and white fluid available with you. I accept the Prosecution description that the offending was then predatory with you following young women and girls for your purpose. You invaded the privacy of strangers, and then captured that and recorded that invasion on footage stored on various devices. At times you made edits to the footage and on one occasion sent it on to someone who was apparently interested in child sexual material.
57You were not deterred when a child or young person appeared to be with their parent or another adult. In every sense it was brazen. At times you followed girls into the car park and on one occasion down a laneway. You followed them even after completing the ‘ejaculation’ and at times zoomed in on their bodies. The filming of your offending is an aggravating feature of it.
58One can think of many different types of sexual assault offences. There are not many cases like yours, although I have been assisted by looking for example at cases dealing with ‘up-skirting’ which has similarities to your behaviour. Those similarities include the fact that the person’s space and privacy has been invaded even if they are unaware. It includes the fact that people must be free to go about their business without worrying that they are a sexual target. In the case of children, any sexual behaviour directed at them is a concern to the community.
59I do accept that the age of victims in a number of the sexual assault charges cannot be treated as an aggravating feature, given there are no charges here of sexual assault of a child under 16.[1]
[1] R v De Simoni (1981) 147 CLR 383
60In my view it would be difficult and unhelpful to descend to the minutiae of determining which example of the sexual assaults is worse than the other. Some run for longer, some girls are younger, some are targeted despite adults present, some white fluid is on the bottom while at other times it hits the legs. For those reasons I have not specified the objective gravity of each occasion separately.
61For the reasons I have outlined, while the individual examples of sexual assault are low level, considered globally, the sexual assault offending is closer to a
mid-range example of that type of offending. Viewed against the backdrop of your other offending a troubling picture emerges.62Charge 2 of produce child abuse material relates to the creation of 12 syringe videos where children were depicted. There is obvious overlap in the behaviour constituting the relevant sexual assault charges and you will not be punished twice. I accept Ms Morgan’s argument that the fact all victims are clothed and not in sexualised poses, as well as the fact videos were not taken covertly in their home or other safe place and were not intended for profit make this offence quite distinct from and less serious than common examples.
63The offending in Charge 3 regarding the morphed still images and Charge 28 regarding the spliced video collages, while not involving children in their creation, still has a serious aspect to it. Any parent knowing their child was depicted that way would be horrified. The real gravity lies in the risk that such material will be disseminated and, in that way, contribute to the perpetuation of and interest in child pornography. Tacit approval of and encouragement of sexual interest in children carries with it the risk of harm. Hence, what is most concerning about the production of child abuse material charges is the fact that on two occasions you shared one of the syringe videos and one of the morphed videos online.
64At the time you shared one of your spliced videos to the undercover operative (Charge 32) you encouraged them to do likewise which constitutes Charge 33. You were having those conversations and exchanges on platforms where likeminded individuals apparently loiter. The protections set up by way of anonymous email account, hidden folders and password protected accounts, as well as your comments to the undercover and moving items away from your home, indicate you were well aware of the illegality, and probably immorality, of your behaviour.
65In relation to your possession of child abuse material in Charge 34, and beyond what you have produced yourself, that is a moderately serious offence. The categorisation in this case uses the Interpol system where there is only Category 1 and 2. The descriptions annexed to the Prosecution opening are agreed by the parties to be more relevant for my understanding and assessment of the level of images and videos you possessed. They include images of very young children up to teens in sexualised poses, often with the focus on their genital area, and in some images where they are naked. Those children have been exploited for the purpose of gratifying adult sexual interest. Their images are now online for all time. There is a presumption of harm which attaches to that offending.
66Conversely, I accept that the number of images is not inordinate and that the charge relates to a single date. Case law demonstrates that the ready access to child pornography can result in thousands of files being obtained by one person. You are not in that category.
67I agree that the examples of the gravity of the depictions here, while always troubling, are at the milder end of the spectrum.
68I want to acknowledge the police members who have the unenviable task of having to view those images for the purpose of assessing them and documenting their descriptions.
Sentencing Principles
69For the reasons I have outlined, as I have stated, sentencing you is complex. The overall picture here is troubling. Any sexual offending against children is serious. The Court on behalf of the community must denounce that conduct and must impose sentences which deter any other person from engaging in similar behaviour. The Court must also have as a focus community protection.
70In your case, although your sexual assault offending individually is of a lower level for the reasons I have outlined, it is offending which warrants a sentence aimed at community protection. It must be assessed against the backdrop of diverse sexual offending aimed at children. Your counsel rightly conceded that a gaol term was inevitable.
Maximum Penalties
71I take into account the applicable maximum penalties of 10 years' imprisonment for Sexual Assault and Produce Child Abuse Material, 5 years' imprisonment for Using a Carriage Service to Cause Offence, and 15 years' imprisonment for Transmitting, Soliciting and Possession of Child Abuse material. For Failing to store Cartridge Ammunition in a Safe Manner the penalty is 60 penalty units or 12 months' imprisonment.
Personal circumstances
72Your personal history is outlined in the report of Clinical and Forensic Psychologist Mr Patrick Newton and dated 10 October 2022. Importantly, Mr Newton assessed you in person over the course of four sessions, and over 6 months.
73You were one of two children raised by your parents in the South-Eastern suburbs of Melbourne. You described your childhood in positive terms. Your father worked as a machine operator and your mother worked as a cleaner. You have a sister.
74In 2001, when you were 9 years old, your mother died from cancer. She was a Torres Strait Islander and due to her early death you have not learned about this part of your heritage.
75After your mother died, you and your sister were cared for in various households of family and friends when your father worked in order to provide for you and your sister. Your sister has been present throughout these proceedings as have numerous extended family members. I have received letters of support from your sister and two sets of your Aunts and Uncles. That is important.
76You attended primary school in Frankston North. You described yourself as a poor student, struggling to acquire functional literacy and numeracy skills, and requiring an aide to assist you.
77You went to Monterey Secondary College for secondary schooling. Your academic struggles continued but there were no significant behavioural, disciplinary or social problems. You had a good friendship circle and participated actively in sporting activities.
78You left school after completing Year 10 and then completed an automotive apprenticeship. To your credit you persisted for an additional two years to complete your apprenticeship on account of your difficulties with book work.
79You then worked as a mechanic for 11 years and over the past 4 years you were employed by your former father-in-law as a mechanical fitter building industrial pumps. All the reference material describe you as a hard worker.
80Your father died in 2007. Your sister writes that you and your father were very close and that after his death, you became withdrawn.
81You have had several intimate relationships, including one between 2007 to 2011 and most recently between 2015 and 2021. You and your partner lived together and have a daughter together. Due to child protection involvement following these charges your contact with your daughter is now limited and supervised. Your former partner and mother of your daughter has also been present during these proceedings. You remain on good terms and see each other approximately weekly.
82You have commenced another relationship with a woman who has an
eight-year-old son. You are permitted only supervised contact. Your new partner is aware of your offending and remains supportive of you. She and her parents were present during your plea hearing and again today.83Prior to your remand you were living alone in a unit in a caravan park.
84You remain close with your sister who has observed your proceedings via video link.
Sexual History
85Your sexual development is documented in detail by Mr Newton. You obtained your first computer at about age 14. That opened to you a near unlimited supply of pornography. You told him you quickly became obsessed, viewing a wide range of genres and content and using it for your spare time. In that sense like many young people you are a victim of the ready access to pornography.
86Your sexual interest was repeatedly, and eventually almost exclusively, drawn to women in leggings, shorts or tight-fitting jeans. You searched all major online repositories for this material ultimately downloading everything you could find.
87Your obsession developed in a range of ways including filming women in the streets who were wearing leggings and obtaining the mannequin which you dressed in leggings and filmed during sexual activity. These activities then escalated into your offending behaviour.
88You told Mr Newton that you had seen a video on a popular porn website in about 2017 where the protagonist squirted moisturiser on a woman’s backside in public, which you found compelling and eventually decided to emulate.
89You had also seen websites where collages of sexual images were mixed with images of women which apparently inspired your own similar activity.
90Your confirm that since your arrest in May 2021 you have stopped use of all online pornography and have disposed of any DVDs et cetera in your possession. I note you had in fact stopped making the syringe videos in October 2020, months prior to your arrest.
Sexual Deviance
91Mr Newton opined that you meet the diagnostic criteria for a ‘Fetishist Disorder - sexually attracted to female clothing’ whereby you experience an intense erotic arousal to female leggings and similar clothing items. That is so regardless of the wearer or whether they are in a pictorial depiction. That is a recognised mental health diagnosis under the DSM-V.
92According to Mr Newton’s expert opinion, it is the strength of your arousal to leggings and the intensity of your distress when they are absent which are the hallmarks of a fetishist disorder. He states this disorder has caused you considerable distress and emotional turmoil and has been associated with prominent sexual dysfunction. He states ‘Most concerning of all, Mr Holman has engaged in non-consensual fetishist behaviour. This commenced with surreptitious filming of women and girls and culminated in his offending conduct.’
93Regarding your possession of child abuse material, Mr Newton noted your comments about the prevalence of children wearing leggings. He noted the diversity of material you possessed, some of which had no link to leggings. He stated that he was unable to render a diagnosis of a paedophilic disorder but that it was clear that you had experienced paedophilic fantasy and arousal patterns.
94To your credit, you consulted a psychologist in 2020 due to anxiety and your use of pornography, however given you felt unable to disclose the true extent of your addiction, you did not find those consultations helpful.
Verdins
95Your Counsel submitted that there was a causal connection between your offending and your diagnosis of fetishist disorder and Mr Newton’s noted concerns regarding your paedophilic fantasy and arousal patterns. Ms Morgan submitted that the expert evidence enlivened the first principle enunciated in Verdins v R.[2] That is, it is a mental impairment which has a causal connection to your offending and in that way reduces your moral culpability.
[2] [2007] VSCA 102
96Mr Manning disputed that submission, relying on the comments of Mr Newton that your moral reasoning is not impaired and at no stage have you been unable to understand the wrongfulness of your actions and their consequences.
97Reference was made to the NSW decision of CR v R[3] where the Court found a causal connection between the applicant’s paedophilic disorder and his offending worked to reduce moral culpability to a degree. There is no similar authority regarding fetishist disorders.
[3] [2020] NSWCCA 289
98To my mind on close scrutiny, the expert evidence does not reach the level to establish that Verdins Limb 1 is enlivened. That is not to say it is not relevant and does not explain to some extent your offending. In particular I take into account the fact that you are part of a new generation, exposed to the tidal wave of online pornography from a very early age, and in that way prone to develop addiction. In your case that has evolved and morphed into a diagnosable disorder. To my mind there is a connection between that history and your offending which, while not to the extent that it reduces your moral culpability, may explain the obsession and extent of your offending.
99The fetishist disorder relates to your obsession with items of clothing. It does not fully explain your interest in children which is theme running through all of the offences here. For that reason, I do not find Verdins Limb 1 is enlivened.
Mental Health
Anxiety and Depression
100You have a long history of anxiety notably in the interpersonal domain. You suffered secondary issues relating to work performance and have experienced several panic attacks with psychological and physical symptoms such as racing heart and chest pains. You have presented to hospital more than once.
101Up until 2020 you were on a range of antidepressant medication with varying success. More recently and to the present time you have been prescribed the SSRI-antidepressant Escitalopram.
102Mr Newton opined that you are suffering ongoing depressive symptoms in the context of intense anxiety. He observed those depressive symptoms on each occasion he assessed you and that was reiterated by your treating psychologist Ms Stephanie Lagos. According to Mr Newton while some depression and anxiety is reactive to your current legal predicament, you have longstanding interpersonal anxiety and poor self-esteem which is intensifying your emotional distress.
103Mr Newton opined that your symptoms are sufficiently intense to meet the
DSM-V criteria for both a Major Depressive Disorder and for a Panic Disorder.
R v Verdins
104Your counsel relied on his comments to argue that Limb 5 of R v Verdins[4] is enlivened. That is, as a result of your major depressive disorder and panic disorder, your pre-existing emotional issues are likely to intensify in the custodial environment. You will require the provision of more than usual supports to transition to that environment. Mr Newton states therefore your experience of incarceration would be more onerous than for a person without that mental health profile. I accept that submission.
[4] R v Verdins [2007] VSCA 102
105Since the time of your plea I have received further written submissions outlining your experiences in custody during remand. You were in close contact with another prisoner who slashed his neck soon after you saw him. You have found that particularly distressing.
106You have struggled to access sufficient mental health support.
Psychological Treatment
107After being charged with this offending you sought treatment of your own volition. You began seeing Ms Lagos, Psychologist with Port Phillip Psychology. You have seen her for 27 sessions with receipts tendered on the plea. You have seen her between June 2021 and October 2022. To my mind that is commendable and beyond what is sometimes seen when a person knows they are going to be sentenced for offending.
108Port Phillip Psychology do not provide court reports however Ms Lagos spoke with Mr Newton. She confirmed first and foremost that the counselling has focused upon offence-specific treatment and also with some attention to your anxiety. You have been diligent and active in your attendance including completing exercises between appointments.
109Mr Newton describes you progress in treatment as good, if incomplete. He says you have developed good insight into your fetish related behaviour and have been able to maintain good behavioural control despite the ongoing stress of these proceedings. You were able to outline a clear understanding of your offending process and to discuss the ways you had rationalised your behaviour and were now able to challenge those rationalisations. You were able to discuss how you deal with dysphoria without recourse to pornography and to use communication with your new partner. Importantly you were able to outline a working relapse prevention plan and describe how you are putting that into practice to ensure you do not reoffend. You have come to understand the true impact of your offending on the victims and the full extent of your culpability.
110Mr Newton noted that you engaged in discussion with him about your sexual behaviour with a degree of candour and openness that is unusual in patients undergoing forensic assessment. Consistent with this, Ms Lagos advised that a similar candour has been present in your treatment sessions and that this has facilitated your progress in treatment. Those gains have been the foundation for your remorse.
111It is accepted that there is more work to do. In particular, you do not appear to have developed a complete understanding of any paedophilic tendencies you have.
112You are committed to ongoing treatment.
Risk Assessment
113Following a risk assessment using the recognised tools[5], Mr Newton opined that your risk of recidivism falls in the moderate to high risk category. He listed a number of factors including your participation in treatment and your work and relationship history which bode well for your ultimate prognosis.
[5] Static-99 and RSVP
Remorse
114You have expressed remorse for your offending to a range of people including in some detail during your assessment with Mr Newton.
115Your Counsel provided a letter of apology written by you and addressed to the Court. You express remorse for the offending, including an apology to the Court, the victims, police and your family and friends. You express your shame and embarrassment and an acknowledgment that your behaviour was inappropriate, disrespectful and that ‘it was wrong of me to ever think it was ok.’ You say you have learnt a lot during your time on bail and have taken time to reflect.
116A letter written by an offender prior to a plea of guilty can often be self-serving and of little weight, but on my assessment I accept your expressions of remorse are genuine. I reach that conclusion given the significant steps you have taken towards your own rehabilitation and the insight you have gained. I accept that you are still shocked and appalled at the offences you have committed and you are doing what you can to make amends. Letters from your family and partner indicate you have been open and genuine with them in that regard.
117Another factor which suggests a real level of insight into the potential for harm to victims and a genuine attempt to demonstrate your remorse is that you have made $650.00 worth of donations to the Bravehearts Foundation between 17 September 2021 and 17 October 2022. That is an organisation dedicated to the victims of child sexual abuse. You did not have to do that. It was a choice you made to outwardly express your deep regret.
118I accept your remorse is genuine.
Plea of guilty
119Your plea of guilty was entered at the first reasonable opportunity. A plea of guilty always carries with it a utilitarian benefit in that it saves the community the cost and time of a criminal trial. I take it into account for the purposes of sentencing in relation to both the State and Federal offences.[6]
[6] Xiao v R [2018] NSWCCA 2
120In this case the trial may have become several trials. It would have been complex and require a number of witnesses. Several charges were open to challenge had you wished to do so. I take those matters into account in your favour and I accept that your decision not to litigate those points is indicative of your remorse. They entitle you to a discount in sentence.
121In addition, you entered your plea of guilty during the period of the COVID-19 pandemic. In those circumstances higher courts have indicated that a plea of guilty must be given a palpable discount.[7] I take those matters into account.
[7] Worboyes v The Queen [2021] VSCA 169
Prospects of rehabilitation
122In my view your prospects of rehabilitation, despite the risk assessment, are good. I reach that conclusion for a number of reasons. You are a relatively young man without any prior criminal record. You sought treatment prior to your offending being discovered. You have shown an extraordinary commitment to therapy since being charged. It has been offence specific, no doubt challenging you on a number of levels. You are demonstrating insight into your pathway to offending and to your own rationalisations. You are committed to continuing that treatment.
123You have protective factors of a new relationship with a person alive to all of these issues. You have always had employment. You have wider family support including from your former partner and her father. You have a daughter as a motivating factor in your life.
124In the short period of remand you have already engaged in courses and employment and, as I have said, you have demonstrated genuine remorse and pleaded guilty at the earliest opportunity.
Defence submissions on sentence
125Your Counsel rightly conceded that a term of immediate imprisonment is the only available disposition in relation to the State offences. However, Ms Morgan maintained that a term of imprisonment without a non-parole period would meet the requirements of sentencing. In relation to the Federal offences, it was submitted that a recognisance release order would meet the relevant sentencing objectives.
126Ms Morgan noted the overlap between offences warranting concurrency, including the fact that numerous of the sexual assaults occurred on single days.
Prosecution submissions on sentence
127The Prosecution did not concede the sexual assaults were lower-level offences, and submitted that terms of imprisonment are required for each offence resulting in a non-parole period being required for the State offences and that a term of imprisonment is open on the Commonwealth offences.
128Inter alia, Mr Manning relied on the risk assessment and comments by Mr Newton that your mental health diagnoses pose an ongoing challenge to treatment even when acknowledging the rehabilitative steps you have taken thus far.
Serious Offender Provisions
129When I impose a term of imprisonment in relation to Charges 1 and 2 you will thereafter be sentenced on the remaining State charges and Charges 32 and 33 as a Serious Sex Offender. This means I must give greater weight to public protection in my sentence for those charges.
Totality
130However, the Serious Offender provisions do not displace the principle of totality. That is, I must still stand back and look at the appropriate overall sentence. It should meet all the sentencing objectives of the Commonwealth and State sentencing provisions and should not be more severe than necessary.
Commonwealth and State Sentences
131I am required here to sentence on State and Commonwealth offending. The preferred method for doing so is to impose sentences on the State charges first as they must commence today, and to then set ‘triggering’ dates or events for the Commonwealth offences to begin. In this way I can achieve cumulation and concurrency where appropriate.
132According to the Sentence Calculation Authority, I should not use as a triggering date the expected completion date of the State sentence. That is due to the number of emergency management days which have arisen due to the COVID-19 pandemic. The risk is that there may be a gap of time between your expected completion date of the State sentence and your actual completion date. I have worded my sentences accordingly.
Current sentencing practices
133I have had regard to the table of comparative cases and to current sentencing practices, noting the unique features of this case. Ultimately I am required to impose a just sentence and that is what I have endeavoured to do.
134The challenge in your case has been tailoring a sentence which adequately punishes you as it must do and protects the community, but which does not interrupt your rehabilitation for too long a period of time.
135In my view, in relation to the 27 sexual assault charges, individually they may have been able to be met by a non-custodial disposition. As I have outlined it is the global effect of those offences which elevates their seriousness. However, I am precluded from imposing a global or aggregate sentence of imprisonment on those charges due to the Serious Sexual Offender provisions. I have determined that the appropriate sentence on those charges is to impose the same sentence for each of those offences and despite the Serious Offender provisions, to order total concurrency.
136In addition to a term of imprisonment, on those offences and all other State charges I intend to impose a Community Correction Order. I have received an assessment report which confirms your suitability. That order will be lengthy and will be squarely directed at your ongoing rehabilitation. The community has an interest in you being fully rehabilitated. A CCO has capacity to achieve community protection and to meet the need for specific deterrence. I am mindful of the Court of Appeal’s comments in Boulton v The Queen[8] in that regard.
[8] [2014] VSCA 342
137It also has the benefit of giving you a definite release date to work towards and it allows me to set conditions for your treatment and ensures any breach will return to me.
138In relation to the Commonwealth offences, the most serious to my mind is the charge of possession of child abuse material though I note that in fact it is not a serious offence as defined. In my view, there must be a term of imprisonment which extends beyond the State sentence for that offence.
Total Effective Sentence
139Mr Holman, the total effect of my sentence which I am about to read will be that you will be sentenced to a term of 12 months' imprisonment plus a Community Correction Order of 2.5 years' duration.
140On each of the charges of sexual assault, you are convicted and sentenced to 5 months' imprisonment. That is Charge 1, Charge 4, Charge 5, Charge 6, Charge 7, Charge 8, Charge 9, Charge 10, Charge 11, Charge 12, Charge 13, Charge 13, Charge 14, Charge 15, Charge 16, Charge 17, Charge 18, Charge 19, Charge 20, Charge 21, Charge 22, Charge 23, Charge 24, Charge 25, Charge 26, Charge 27, Charge 29 and Charge 30.
141On Charge 2 of Produce Child Abuse Material you are convicted and sentenced to 4 months' imprisonment.
142On Charge 3 of Produce Child Abuse Material you are convicted and sentenced to 4 months' imprisonment.
143On Charge 28 of Produce Child Abuse Material you are convicted and sentenced to 4 months' imprisonment.
144On Charge 31 of Using a Carriage Service to Cause Offence you are convicted and sentenced to 1 month imprisonment.
145On Charge 32 of Using a Carriage Service to Transmit Child Abuse Material you are convicted and sentenced to 3 months' imprisonment.
146On Charge 33 of Using a Carriage Service to Solicit Child Abuse Material you are convicted and sentenced to 3 months' imprisonment.
147On Charge 34 of Possess or Control Child Abuse Material Obtained or Accessed Using a Carriage Service you are convicted and sentenced to 10 months' imprisonment.
148On Summary Charge 6 of Failing to Store Cartridge Ammunition in a Safe Manner you are convicted and fined $200.
Cumulation
149I direct that the sentence on Charge 1 is the base sentence.
150In relation to the State offences, 2 months of the sentence on Charge 2, 1 month of the sentence on Charge 3 and 1 months of the sentence on Charge 28 be served cumulatively on the base sentence and on each other. The total State term of imprisonment therefore is 9 months' imprisonment.
151I declare that you have served 51 days pre-sentence detention and that that period be reckoned as having been served under this sentence.
152In relation to the Commonwealth sentences I make the following orders. The sentence on Charge 31 is to commence today. The sentence on Charge 32 is to commence 75 days prior to the completion of the State sentence. The sentence on Charge 33 is to commence 60 days prior to the completion of the State sentence. The effect of those orders is that you will serve a total of 1 month beyond the State sentence for those two charges.
153In relation to Charge 34, I direct that that sentence is to commence at the completion of the sentence on Charge 33. I further order, pursuant to s20(1)(b) of the Crimes Act 1914 (Cth) that you serve 2 months of that sentence before being released on a recognisance release order to be of good behaviour for a period of 15 months. What that means is that you will have 8 months' imprisonment hanging over you for the period of 15 months after your release from custody.
154In addition to the terms of imprisonment, in relation to Charges 1 – 30 inclusive, you are convicted and sentenced to a Community Correction Order. That will be of 2.5 years' duration. That will commence upon your release from custody.
155The conditions of that order in addition to the mandatory conditions are that you be under supervision, that you undertake assessment and treatment for your mental health as directed and that you undertake Sex Offender Programs as directed.
156I cannot impose that order without your consent to it. Do you consent to undertaking that order on your release from custody, Mr Holman?
157OFFENDER: I consent, Your Honour.
158HER HONOUR: I must inform you that if you breach that order either by reoffending or by non-compliance with the conditions you could be brought back before me and could be re-sentenced on the offending that is currently before me. Do you understand that?
159OFFENDER: I understand, Your Honour.
Section 6AAA
160HER HONOUR: Pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty, so if you had not pleaded guilty, the sentence I would have imposed would have been one of 5 years' imprisonment with a non-parole period of 3 years and 3 months' imprisonment.
Serious Sexual Offender
161I direct that in relation to Charges 3 to 30 inclusive and Charges 32 and 33, you are sentenced as a Serious Sexual Offender and that that matter should be entered into the records of the court.
Sex Offender Registration
162Under the Sex Offenders Registration Act 2004 (“SORA”) you are pleading guilty to 14 Class 2 offences.[9] Accordingly, mandatory registration applies[10] and does so for your life. That paperwork will be provided to you, Mr Holman, and I will ask that you sign that as an acknowledgement that you have received that paperwork.
[9] Schedule 2 of the Sex Offenders Registration Act2004.
[10] Sections 6 and 7 of the Sex Offenders Registration Act 2004.
163Are there any matters to raise, Counsel, and I am happy to give you a moment to go over the calculation.
164MR MANNING: If I could seek that indulgence for perhaps 5 or 10 minutes, Your Honour, just to clarify that.
165HER HONOUR: Absolutely, yes.
166MR MANNING: The only matter I sought to raise in relation to the remarks, I think when Your Honour referred to Charge 2, which is the production of child abuse material, there was a reference to 12 recordings. It is seven recordings that relate to that particular charge which is from the amended opening.
167HER HONOUR: Thank you very much for correcting that. I will make sure that is corrected in the revision.
168MR MANNING: Thank you, Your Honour.
169HER HONOUR: Yes, I did. Thank you.
170All right. I will leave the Bench, I will give a counsel a moment to look at those calculations. Let me know when you are ready. Thank you.
(Short adjournment.)
171HER HONOUR: Despite my best efforts, Mr Manning, is there a problem?
172MR MANNING: No, I am very grateful to Your Honour for the extra time. The only issue I have flagged is with respect to the recognisance release order and what we are proposing is that - I understand my learned friend and I are agreed about the issue but if I could just take Your Honour through it - - -
173HER HONOUR: Sure.
174MR MANNING: - - - and then perhaps if Your Honour would give us the indulgence of checking that over the course of the day - - -
175HER HONOUR: Yes.
176MR MANNING: - - - and by this afternoon we can confirm by email correspondence to Your Honour's associates.
177HER HONOUR: Yes.
178MR MANNING: As I understand, the intention is to impose 9 months' imprisonment with respect to the State offending.
179HER HONOUR: Correct.
180MR MANNING: And a total period of 12 months' imprisonment to serve with effectively 8 months' imprisonment hanging over Mr Holman's head. So globally 20 months in total with a period of some 12 months to serve.
181HER HONOUR: Yes.
182MR MANNING: And I think the difficulty arises with Charge 1 because the Commonwealth sentence on Charge 31, being 1 month, commences today so that the total effective sentence for the Commonwealth offence has commenced from that first sentence being today which means the recognisance release order would have him being released two months from today with respect to the Commonwealth sentences.
183HER HONOUR: But the recognisance release order my intention was to only apply that to Charge 34.
184MR MANNING: Yes. That is how I took Your Honour's intention, however, it effectively operates like a non-parole period. The Commonwealth sentences achieve a total effective sentence for the Commonwealth offending and then a recognisance release order is set with respect to that total effective sentence for the Commonwealth offences.
185HER HONOUR: I see. All right.
186MR MANNING: So I think the situation can be fixed quite simply by changing the commencement dates of Charges 30 and 31.
187HER HONOUR: Thirty and - - -
188MR MANNING: Sorry, 31 and 32.
189HER HONOUR: Yes.
190MR MANNING: Which should fix it because if Your Honour ignores those two charges for the time being - - -
191HER HONOUR: Yes.
192MR MANNING: - - - the State charges produce 9 months.
193HER HONOUR: Yes.
194MR MANNING: And then Charge 33, Your Honour had commencing 60 days prior to the expiration of the State sentence so that would effectively add 1 month to the State sentences.
195HER HONOUR: Yes.
196MR MANNING: We are then at 10 month .
197HER HONOUR: Yes.
198MR MANNING: And then Your Honour had Charge 34 commencing at the expiration there which adds the other 10 months which gets to 20 months.
199HER HONOUR: Yes.
200
MR MANNING: So globally that works correctly and then the issue is just making sure that the recognisance release order commences at the global
10-month point so that two months later, being 12 months, Mr Holman would be released on that recognisance release order and to achieve that - - -
201HER HONOUR: Yes.
202MR MANNING: I can confirm this in writing because I am not explaining it very well to Your Honour but - - -
203HER HONOUR: No, no, you are. What is worrying me is whether that creates a problem with the combination sentence, the CCO.
204MR MANNING: It should not, in my submission, because Your Honour can defer - I mean it is - the CCO can be deferred for up to 3 months unless it - - -
205HER HONOUR: It is more that there is a 12-month limit on the combination.
206MR MANNING: Under s44 of the Sentencing Act.
207HER HONOUR: So my intention was to impose the 12 months and release him to the CCO. The way you have articulated it though is 20 months but I am assuming the RRO does not count for the purposes of s44.
208MR MANNING: Yes.
209HER HONOUR: All right. All right.
210MR MANNING: The Commonwealth sentences are irrelevant for the State sentence - - -
211HER HONOUR: Very well. Fine. All right.
212MR MANNING: - - - in terms of the sentence that Your Honour imposes. I will check that as well.
213HER HONOUR: All right. So come back to - - -
214MR MANNING: But the total effective State sentence is 9 months.
215HER HONOUR: Yes.
216MR MANNING: So Your Honour is within that 12-month limit there.
217HER HONOUR: All right. So come back to 31 and 32. Sorry, you will have to say that again, Mr Manning, because I was distracted when you started talking about 20 months.
218MR MANNING: No, my apologies, Your Honour. Charges 31 and 32, if we - the commencement of those sentences, if they are shifted back in time to effectively the 10-month mark of the global sentence, the recognisance release order would also commence from that date which would have Mr Holman being released 2 months later on that recognisance release order being the 12-month mark globally.
219HER HONOUR: So the wording for Charges 31 and 32 then as far as they to commence - - -
220MR MANNING: Sixty days prior to the expiration of the State sentence.
221HER HONOUR: All right. Yes.
222MR MANNING: Or whatever period Your Honour determined appropriate but not greater than that.
223HER HONOUR: Yes.
224MR MANNING: So that the Commonwealth total effective sentence does not commence earlier than 10 months in.
225HER HONOUR: Yes. All right. No, that makes sense. So sentence on Charge 31 and the sentence on Charge 32 are both to commence - - -
226MR MANNING: I have just realised there is no articulating that. There is an issue with that as well, Your Honour. That would be the case for Charge 32.
227HER HONOUR: Yes.
228MR MANNING: But I have just acknowledged the State imprisonment ends after 9 months.
229HER HONOUR: Nine months.
230MR MANNING: So we cannot have the gap between 9 and 10 months. So Charge 31 would need to commence - - -
231HER HONOUR: Well, Charge 31 can commence - Charge 31 is a term of 1 month imprisonment. So that can commence - yes.
232MR MANNING: Your Honour, I am sure we will be able to reach the mechanics that very closely if not entirely reflect Your Honour's intention.
233HER HONOUR: Yes.
234MR MANNING: I think the parties are all agreed on what Your Honour's overall intention is.
235HER HONOUR: Yes.
236MR MANNING: Would Your Honour permit us the rest of the morning to effectively reach an agreed position and convey that to the court?
237HER HONOUR: Yes, I am happy to receive that assistance. You both understand what I am intending.
238MR MANNING: Yes.
239HER HONOUR: And as I noted in my reasons, my discussion with the Sentence Calculation Authority is that there have been issues where there is the interplay of State and Commonwealth because of emergency management days and that is why the wording was suggested a little bit differently to what has happened in that past.
240MR MANNING: That is my understanding as well and I respectfully adopt that instead of fixing particular dates for sentences to have them contingent on either the commencement or expiration of other sentences. So we will keep that in mind when we frame together a proposal.
241HER HONOUR: All right. Thank you very much. Well, I am happy to hold off making orders then - - -
242MR MANNING: Thank you, Your Honour.
243HER HONOUR: - - - until I have some correspondence from counsel.
244MR MANNING: I am grateful.
245HER HONOUR: All right. I am grateful for the assistance. Thank you.
246Ms Morgan, I will ask my staff just to leave you on the link with Mr Holman so you can have a chat with him before we lose that link.
247All right. Mr Holman, I will leave you on the link with Ms Morgan so she can go through that with you. I know it is a lot of information to absorb but the bottom line for you is that you will serve 12 months minus the time you have just done and then you will be released to a community correction order and you also have a recognisance release order requiring you to be of good behaviour.
248So that can all be clarified for you.
249All right. Thank you very much. Thank you, Counsel, both of you for your assistance. Thank you.
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