Director of Public Prosecutions v Sullivan
[2013] VCC 1347
•13 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No CR-13-01023.
| THE QUEEN |
| v |
| BENJAMIN SULLIVAN |
---
JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 13 September 2013 | |
CASE MAY BE CITED AS: | DPP v Sullivan | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1347 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Stevens | |
| For the Accused | Mr N. Batten |
HER HONOUR:
1
Benjamin Sullivan, you have pleaded guilty before me to one charge of accessing child pornography material using a carriage service contrary to
s.474.19(1) of the Commonwealth Criminal Code.
2 The facts underlying your offending are as follow:
3 On 6 February 2013 police executed a search warrant at your home in Elsternwick, which you shared with your partner and two children, and seized a computer and two external hard drives believed to contain child pornography material. The search took place as a result of information provided by the Austrian Criminal Intelligence about the misuse of a particular website as to the storage and dissemination of child exploitation images.
4 The Australian Federal Police Child Protections Operation received a referral from the Austrian Criminal Intelligence Service in relation to a internet address where four child pornography images were downloaded and viewed between 17 and 20 March 2012.
5 Following the search and seizure of the computer equipment you were arrested and taken to AFP headquarters where you conducted what I regard as a very frank record of interview with police. In that interview you admitted downloading child pornography, including the four child pornography images in March 2012 for sexual interest reasons and that you had no age restrictions when searching for child pornography. You admitted having an urge to view the child pornography over the previous two years, that you did it for the purpose of masturbation, that you believed the children would have been ten to 12 years old. You admitted viewing and masturbating to images of girls as young as ten years old. You told police that the child pornography images seemed abstract to you and not connected to real people, took responsibility for all child pornography on your computer and said you knew it was wrong.
6 The material was analysed. There were a total of 404 images, 214 of them falling into the category of Level 1, which is images of children depicting nudity or erotic posing with no sexual activity, 37 images falling into Level 2, which is sexual activity between children or solo masturbation by a child, the majority of those being pre-pubescent girls masturbating. There were 13 images from a Level 3 category of non penetrative sexual activity between adults and children, and 140 Level 4 images depicting penetrative sexual activity between children and adults. There were no images falling into the Level 5 category depicting sadism, bestiality, humiliation or any form of child abuse.
7 You have no prior convictions. I now turn to your personal circumstances. You are 38 years of age, the second of four children born to your parents. Your father works as a musician, your mother worked in disability services after holding the occupation of home duties when you were all young. Your parents ultimately separated but did so amicably and it appears that you grew up in a loving and supportive family. You have one older brother, a younger brother and a younger sister. It appears no one in your family apart from you has ever been in any trouble with police.
8 You left school in Year 10 at which time you were already involved in the music industry, playing in a trio with your father and older brother from about the age of 14. You also had a personal passion for painting and between 1991 and 1994 completed a diploma in art and design at the Melbourne School of Art and Photography. In 1995 you undertook a course successfully in architectural illustration and around that time also worked at the Melbourne School of Art and Photography as a teacher.
9 In 1996 to 97 you worked with your father and brother in a number of residential gigs, if I can put it that way, which basically means permanent bookings with various institutions including Crown Casino at corporate events and so forth.
10 In 1998 you undertook a three year degree at Monash in Fine Arts, during which you met your partner with whom you have been in a relationship ever since and by whom you have two children, a six year old daughter and a two year old son.
11 After completing your degree you had a fairly scattered sort of employment involving working with the family trio, undertaking house painting and piecework of that kind, which was overall fairly cash poor. You also worked painting portraits and seeking to boost your painting career by exhibiting your work in group exhibitions (indistinct) selling one.
12 Along the way you also tried to set up some businesses. In 2006 you undertook a business course and set up a mural painting business for about a year but which was ultimately unsuccessful. You in 2008 began freelance graphic work and illustration for a number of clients, particularly in web design. You also set up a business with your sister which was fairly successful, selling decals, that is products which can be posted on walls as part of an interior decoration. That had concluded by about 2011 for a number of reasons, including your sister's pregnancy.
13 Your second child was born in 2010, at which time you also began working with a new band, which was fairly successful, but which involved you working hours at night.
14 It would appear that around the time of this offending you were often working at night a fair bit in the music industry and coming home late at night, having drunk six to eight beers and to a sleeping household and then going onto the internet. You were also using the computer a fair amount in your graphic design business. In any event, it would seem between 2011 and 2013 that you got into the habit of viewing child pornography.
15 Following the police raid, Department of Human Services were also notified and you were instructed you could not have contact with your children, except under supervision, and you moved to your mother's home. You have returned to your family home, on a daily basis, basically in the morning to make breakfast and after work in order to cook tea for your children.
16 I am satisfied that there has been enormous personal repercussion for you. Your partner understandably has still significant issues of trust with you. Your daughter was questioned at school by Department of Human Service officers. Despite your partner's reassurances that you were an excellent father, as I have gleaned from the psychological material tendered on the plea, you have not been able to live at home.
17 You have good family support. You have told your father, your mother and all your siblings of what occurred. I am satisfied that you have taken the consequences of your arrest extremely seriously, not just in terms of abiding by what must be very onerous Department of Human Service conditions and which must be very difficult for you personally, but also in attending on a regular basis a psychologist, Dr Rachael McKenzie, in order to better understand why it was you became involved in viewing this material.
18 Your counsel took what is normally considered the "courageous" step of calling you on the plea - I say "courageous" because most barristers do not have sufficient faith in their clients to do themselves any favours in court. In fact, Mr Sullivan, you did. It was my view that you answered the questions put to you very forthrightly, indeed in cross-examination you freely made answers which were against your best interest. You did not try to blame your offending on your alcohol consumption, indeed you said you were only drinking alcohol about half that time.
19 Having viewed many, many people over the years give evidence on their behalf in court, can I say you did yourself a great favour? It seems to me you were very genuine in the concern you expressed over the fact that you had offended, the effect you had had on your partner and on the children and upon the victims, that is the children who are exploited on film, which is then displayed around the world. It seemed to me that you also expressed a very genuine desire to continue seeing Ms McKenzie, stating that you still wanted to know why you behaved as you did and that you regarded yourself as lucky to be seeing her.
20
I received very helpful psychological material. I received a report from
Dr McKenzie dated 11 September 2013. She is the clinical psychologist obviously, upon whom you have been attending. She described your participation in therapy with her in extremely positive terms. She felt that you had been very receptive to that therapy and that you had readily developed appropriate victim empathy in terms of the children that you were watching and are now horrified about what you have done.
21 In addition, I also received a further report from a forensic psychologist, that is, Dr Joel Godfredson, who saw you on 26 August 2013, spoke to you again by telephone on 10 September and spoke also to Dr McKenzie. In his report dated 10 September 2013 he referred to a number of tests he had carried out with you as well as the interview process. It was his view that your risks of reoffending are low.
22 I am satisfied that you are genuinely remorseful for your offending, as evidenced by your extremely frank record of interview with police, the very early plea of guilty which was entered at committal stage, the answers that you gave while giving evidence and the earnest steps that you have taken to explore your own motivations and personality, leading you to offend in this manner. At no stage, does it seem to me, you have sought to excuse what you did or to lessen the gravity of what you did.
23 You have no prior convictions. The prosecutor correctly submitted that in cases involving sexual offending the issue of previous good character usually carries less weight than in other such cases, however in my view in cases such as this the prior good character is of some importance. Your offending has not involved the dissemination of material and it has not involved participation in chat rooms where often the most revolting conversations take place about what people intend to do to children in the future, or what they have done to children in the past. There has been none of that salacious group activity that often accompanies this type of offending.
24 I am satisfied that really it was a rather perverse but entirely solitary pursuit that you entered into that would appear to be ordinarily foreign to your nature. It seems to me there are a number of reasons why this occurred, to do with stress, to do with financial problems, to do with the unfortunate situation that almost seems to be entirely male of adjusting to the stresses and strains simply of having children themselves, so that a lot of the activities that could previously be undertaken in a social sort of way simply cannot anymore, that there is sometimes a bit of discord between partners because the mother responds more maturely to the limitations that children inevitably bring with them than the male. To some extent you were still living in a world where that does have application, that is playing at gigs. There seem to be a number of reasons why you got into this habit, none of them which in any way excuse it but do give some exploitation which is important for a sentencing court to note.
25 I am satisfied that specific deterrence is not an issue that this court need unduly concern itself, that is sentencing you to teach you a lesson. I am satisfied that you have learnt plenty of very difficult and unpalatable lessons as a result of your apprehension for this offending, and I am satisfied that those lessons have not been and never will be lost on you.
26 The gravity of this offending is clearly indicated in the maximum available penalty, 15 years, which is a moderately high maximum penalty in the sentencing array. Ordinarily people who offend as you did can usually expect to receive terms of imprisonment to be immediately served. Quite correctly the learned prosecutor pointed out this horrendous industry is supported by persons such as you viewing what you did. And the importance of stamping out that market, because it is only the viewing market that breathes oxygen into the sort of film industry you have been looking at.
27
It is for that reason I have agreed with the prosecutor that I should impose a sentence of imprisonment upon you but because of the mitigating factors or the positive factors in your life, the lack of prior history, the remorse, the frankness and cooperation with police, the steps that you have taken, the fact that I am satisfied that you have good prospects of rehabilitation and am fortified in that regard by the assessments of Dr Godfredson and
Dr McKenzie, I am satisfied that that sentence should be wholly suspended.
28 Now, I need to explain to you what breaching a suspended sentence means. What a suspended sentence is is essentially a term of imprisonment that is imposed but that is suspended for a period of time and if you offend during the period of suspension, that is the time that the sentence is suspended for, you will be brought back before the court on the charge of breach of suspended sentence, and Parliament has made it perfectly clear that unless there are exceptional circumstances attached to that offending you will be made to serve all or part of the suspended sentence.
29 I will get you to stand up please, sir.
30 On the charge of using a carriageway in order to access pornographic material you are sentenced to two years and six months' imprisonment.
31 I am going to sentence you to a term of 18 months. That term will be suspended for a period of two years on you entering into a recognisance to be of good behaviour in the sum of $3000. What that means is this, you sign a document promising to be of good behaviour for the next two years. If you commit any offence in the next two years you will have to pay the $3000 that I have attached to it and you will be brought back before me to be re-sentenced on this particular charge. Do you understand that?
32 PRISONER: I understand, Your Honour.
33 HER HONOUR: All right, thank you. Are you prepared to enter into such a recognisance?
34 PRISONER: Yes.
35 HER HONOUR: Have a seat, sir, thank you. The documentation will be prepared. Thank you.
36 MR STEVENS: It will just take me a few moments, Your Honour.
37 Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of three years' imprisonment and order you serve a minimum term of one year.
38 MR STEVENS: Would Your Honour just bear with me for a few moments? I will just complete the paperwork.
39 HER HONOUR: Thank you very much.
40 I should add that you were well supported in court by the presence of your mother, father, older brother and partner, also fortified in my decision to find that you are remorseful for your actions in the fact that they have come here fully aware of your offending and have continued to assist and support you so that again that is another area of support that also I find heartening in terms of your prospects of rehabilitation in the future.
41 I should add, in addition I understand that you are now employed on a full time basis as a water membraner, and I note that in evidence you stated that for the first time you have been earning what you would regard as a proper wage. So that one of perhaps the stressors in the constellation of factors underlying your offending seems to have been somewhat relieved.
42 You also, I note, continue to have the support of your partner insofar as your parenting is concerned, although I also note that unsurprisingly you have a number of issues that the two of you need to work out between you, but overall I am satisfied that this offending will represent a period of time in your life that is most unlikely to recur and I accept your vehement response to the question as to whether you would ever access child pornography again, which was that you never would. And you had better not, Mr Sullivan, at least for the next two years, I could tell you. All right.
43 HER HONOUR: Yes, you will be placed on the Sex Offenders Register for a period of eight years. Your counsel will explain to you your obligations under that. Sorry, Mr Batten, I forgot to put in my sentencing remarks about your extremely helpful and thorough plea, which indeed it was. And you do not miss out either, Mr Stevens. Thank you very much for your assistance.
44 MR STEVENS: Thank you, Your Honour.
45 HER HONOUR: And very helpful submissions as well. Thank you. All right, that is it, Mr Sullivan. Part of the nightmare is over, yes?
46 PRISONER: Thank you, Your Honour.
47 HER HONOUR: That is all right. All right, well I hope I never see you again as much as I am sure you hope you never see me again, Mr Sullivan. Thank you very much. I thank counsel for their assistance We will adjourn.
- - -
0
0
0