THE KING v JULIAN LUKE BENSON 14 DECEMBER 2023
COMMENTS ON PASSING SENTENCE PEARCE J
Julian Benson, you plead guilty to 13 offences under the Commonwealth Criminal Code arising from your production, possession, transmission and publication of child abuse material. The sentencing proceedings commenced on 13 September 2023 before Geason J. His Honour heard the facts and a plea in mitigation. A pre-sentence report was prepared and submissions were made about it. The Chief Justice determined, in accordance with the Sentencing Act 1997, s 91(5), that it appears probable that Geason J will be unable to pass sentence within a reasonable time. Accordingly the matter was referred to me to pass sentence. Your counsel and counsel for the prosecution agreed that I have regard to all of the material put to Geason J and to a transcript of the sentencing proceedings on 13 September and 18 October. Neither party wished to advance any further submissions until today when I heard some further brief submissions for counsel from the prosecution and on your behalf.
There are 14 counts on complaint 91312/22. No evidence is tendered on count 6 and it is dismissed. Counts 1 to 5 and 7 to 11 have a maximum penalty of imprisonment for 15 years. Counts 12 to 14 have a maximum penalty of imprisonment for three years. I will further detail the remaining 13 charges after describing the background circumstances. In February 2021, when you were 21 and living in Tasmania, you commenced an on-line relationship with a 17 year old girl who lived in Oregon, in the USA. You came across each other about a month earlier via a social media application called Discord. You then persuaded her, by using emotional pressure, to create and send to you intimate images of herself, both still and video. The images included images of her masturbating and performing strip tease. In addition, you engaged in live stream video calls in which you would sit naked and sometimes each perform sexual acts. On these occasions you, without her knowledge, made and preserved recordings of the screen images of her, including occasions of her engaging in solo sexual activity. One particularly disturbing image is of her thigh with your name carved into the skin which was bleeding.
In August 2021 she broke up with you and sought to cease communications. However you did not accept this. You attempted to make her feel guilty, accused her of cheating and threatened to publicly release the intimate images of her you had. In an attempt to damage her you contacted the police in her area. Ironically, it was her contact with the police which you initiated which led to the investigation of your conduct in Australia. You did in fact publish images of her. You did so purely from spite and a wish for revenge by punishing the complainant for spurning you. On 24 November 2021 she informed the police that she had found false Twitter and Instagram accounts in her name which you had created which contained images of her. Your house was searched on 30 November 2021. Analysis of the devices seized disclosed the full extent of your crimes.
Five devices were seized, two iPhones, two hard drives and a computer tower. An iPhone 5 contained 140 image files and 12 video files stored in an encrypted password protected application. An iPhone 7 contained 49 image files and 124 video files. A WD Elements hard drive contained 767 files. A Kingston hard drive contained 31 image files and 261 video files. A black computer tower contained 40 images and 151 videos. Most of the files were child abuse material consisting of images and videos of the complainant. They were a mixture of images she had sent you and others you had covertly recorded from the webcam conversations. Your possession of those images on 30 November 2021, the date of the search, constitutes for each device, the crime of possessing child abuse material obtained using a carriage service contrary to s 474.22A, counts 1 to 5 on the complaint.
Count 7 is a charge of using a carriage service to cause child abuse material to be transmitted to yourself contrary to s 474.22(1)(a)(ii). Between 1 February 2021 and 31 May 2021 the complainant sent you approximately 50 images and videos, either by means of livestreaming or other videos and images. You used on-line emotional pressure to cause her to do so, thereby committing the crime.
Count 11 is a charge of producing child exploitation material for use through a carriage service contrary to s 474.23(1)(a)(ii). It concerns the child abuse material you created between 19 February 2021 and 17 August 2021 by making screen shots and screen captures of the complainant when she was naked or engaging in sexual acts which were livestreamed on Discord, Skype and Snapchat. There are at least 263 videos and 2 image files, all uploaded and kept by you for your own benefit and enabling you to further distribute them, which you later did as I am about to describe.
Count 8 on the complaint is a charge of using a carriage service to cause child abuse material to be transmitted to yourself contrary to s 474.22(1)(a)(ii). Between about 17 August and 2 September 2021 you saved the images of the complainant to online cloud accounts to organise it and create backups. You uploaded 123 videos and 133 images of her to a website called anonfiles.com. They were a mixture of screen captures you made and images she sent you. You stored URLs to these files on one of your iPhones and the files were stored in the device. You also uploaded the 263 video files and two images files, all screen recordings including screen captures from Snapchat, to an online free cloud storage service called Blomp.
Count 9 on the complaint is a charge of using a carriage service to make available child abuse material contrary to s 474.22(1)(a)(iii). On 20 August 2021 you sent links to a Google drive to another user of the social media app you had been using. The link allowed that person access to the drive which contained 133 images and videos of the complainant.
Count 10 on the complaint is using a carriage service to publish child abuse material contrary to s 474.22(1)(a)(iii). It arises in the following way. The complainant ended the on-line relationship with you during August 2021. You demanded that she speak with you before a deadline threatened her that unless she complied with your demand that you would publish images of her. You warned her of what you called “permanent damage incoming” and called her a “disgusting whore.” When she did not comply you carried through on your threat. On 27 August 2021 you published all of the videos and photos she had sent you on your personal Twitter account. Worse than that, you tagged the post to her employer who, as you intended, became aware of the contents. You also created a fake email account which you used to create a fake Twitter account. On this account you posted two sexually explicit images of the complainant.
Counts 12, 13 and 14 are all for using a carriage service to menace, harass or cause offence contrary to s 474.17(1). It is a crime which concerns any use of a carriage service to menace, harass or cause offence. It may be unrelated to child abuse material although in this case it is so related. The maximum penalty for these counts is less. However, I regard these as relatively serious examples of the crime. The three charges carry common criminality and concern acts which occurred after the complainant told you she no longer wished to communicate with you. On 19 and 20 August 2021 you sent three emails to the police in Oregon falsely reporting that the complainant was intending to engage in sexual relations with an adult co-worker. On 20 August 2021 you sent messages to the complainant via PayPal demanding that she speak with you within 40 hours to tell you why she led you on. You threatened her that if she failed to comply you would publish all of the intimate images of her on multiple on-line accounts and platforms. You threatened to release the material before then if she told the police or anyone else, that you would make sure she lost her job and that you would give the material to a “Nazi friend”.
These were not empty threats. Between 18 August 2021 and 30 November 2021 you created fake accounts on various on-line platforms and while pretending to be the complainant, published the material. Using her name and image you posted messages falsely suggesting she had a sexual interest in children and other fabricated sexually explicit accusations. On your own Twitter account you posted all of the videos and images she had sent you and tagged her employer so it would become known. You created a false YouTube profile using her name and residential address suggesting she was a paedophile. You created a Pornhub account using a fake Gmail address you created in her name. Between 27 September 2021 and 2 October 2021 you used another fake Twitter account to make posts, using clear images of the complainant’s face, her full name, details of her location and school, tagged to her employer, falsely alleging that the complainant was a paedophile, her mother was a drug user and her father beat his wife. You included search references called hashtags designed to achieve broader public circulation of the images and comments. All of the images and posts on Twitter remained visible until after 30 November 2021.
I must impose a sentence that is of a severity appropriate in all the circumstances of your offences. I must take into account such of the matters listed in the Crimes Act 1914, s 16A(2), as are relevant and known to me. I have described the nature and circumstances of your offences. Your personal circumstances were described by your counsel and in a pre-sentence report prepared by a probation officer. At the time you were 20 and 21. You are now aged 23. Your parents have always been separated and you were mostly in the care of your mother. You only saw your father occasionally. Regrettably, your childhood was marred by physical and emotional abuse, both at home and at school, where you were bullied. By the time you were in your early teens neither parent was able to care for you. Following a period living in a men’s shelter at age 15 you moved in with your then girlfriend. Although you are no longer with that girlfriend, you still live with her mother, who provides you with a stable and supportive home. You completed grade 12 but you have not held paid employment since you were 16. You receive Centrelink benefits. You are medicated for anxiety and depression but it is not submitted, nor is there evidence, that your mental health condition contributed to your offending or is otherwise relevant to sentence. You became interested in computers when you were young and became very proficient. You spent a lot of time on-line, communicating with others and gaming.
Your offending behaviour relates only to the complainant. No other children were involved or depicted. At the time of the offending behaviour she was 17, at the upper end of the age at which she was still a child. According to your counsel you did not regard her body as a child’s body and you have no sexual interest in children in the sense which is commonly the case for crimes of this nature. You were three or four years older. The crimes of possessing and production of the material are less serious than they might otherwise have been by reason of her age and your relative ages. For that reason I regard the comparative sentencing examples provided by the prosecution to be of little assistance because the circumstances of the offending in those cases were quite different.
The victim was almost an adult, but of course she was not an adult and the circumstances suggest that she had other vulnerability which made her prone to the pressure you exerted. You met on-line and after she broke up with her boyfriend at the time you began to communicate more frequently. It was submitted on your behalf that initially there were mutual feelings of affection and she, without prompting, began to send intimate images of herself. Nevertheless you accept that you thereafter pressured her, by yelling and taking advantage of her vulnerabilities and insecurities, to continue to do so. When she told you that she no longer wished to engage with you, you became confused and reacted in an immature way. You claim to have been self-medicating with alcohol and that it contributed to you acting in this way. That is not only not mitigating but does not explain the course of your conduct over an extended period. You now appreciate the damage you have done, you are ashamed and wish that you could take it back. You were highly emotional when discussing the case with the author of the pre-sentence report and she thought you were genuinely sorry for what you did. You have no prior convictions. You co-operated with the investigating authorities including by making some admissions and providing passcodes to otherwise passcode protected information. You entered a plea of guilty soon after the final complaint was filed which is also an indication of remorse, avoids the need for a trial and relieves the victim of having to give evidence.
Protection of children is the paramount sentencing consideration. As I have already explained, this case is different in many respects to cases involving images of younger children accompanied by paedophilic interest. However, there are other aspects of your crimes which make them serious for different reasons. In my view the court has a duty to mark the seriousness of the crimes not only as punishment for you, but as a signal to others of the potential consequences for anyone who may be tempted to act this manner in the hope of deterring them from doing so. Creation of child exploitation material in this manner is difficult to detect because it is inherently and intentionally committed in secret, and is insidious. Victims, who are vulnerable by reason of their age, lack of maturity and other factors personal to them, are targeted. Laws which prohibit involving young persons in the creation of child exploitation material are in place to not only protect victims from the actions of offenders, but also from themselves. Once images are provided, victims are trapped. Faced by threats that, without compliance, images will be disseminated on the internet or of some other consequence, their lives become a misery. Such crimes may well lead to self-harm and even suicide. Your victim is now aged 20. There is no victim impact statement but there is a presumption of harm to victims from crimes of this nature. There are very real signs of the type of impact which may be expected to result. You not only created or caused the creation of the images of her, some without her knowledge, but once you did so you used the material as a means to pressure and harass her. She became the subject of offensive, distressing and humiliating false allegations and slurs, which you deliberately circulated, which had a direct impact on her employment at the time such that she had to find a new job. She has said that the experience made her hate man more than she already did, felt lowly and ashamed. Perhaps most importantly of all, a person in her situation would suffer a high level of mental anguish, not only at the time, but on a continuing basis, knowing that intimate images of her were published on the internet. These were images of a real person who you deliberately set out to identify to a large number of people.
You caused transmission of the material to yourself over the course of four months and the uploaded it to sites over which you had little control. You produced child exploitation material over a longer period. Your transmission of the material to another person, and then wide publication of the material involved no commercial aspect, but was deliberate and cruel, motivated by spite and revenge. It was not a spur of the moment or impulsive action. It was suggested that you did not consider the consequences, but over the course of more than two months you used your proficiency on the internet and the various platforms to deliberately cause extreme public humiliation and distress. You were a young man when these crimes were committed and the prospect of your rehabilitation is always an important matter. The sentence will provide for it. However, despite your age and lack of prior convictions, I have concluded that the need to punish and deter you, and deter others from conduct of this nature, are the predominant sentencing factors. Sentences which make clear the potential consequences to those who so offend have the effect of protecting other potential victims. Crimes such as this are relatively easy to commit but have a disproportionate and long lasting impact on the lives of the victims.
I am satisfied that, having regard to the nature of your offending and the deliberate harm and embarrassment caused to the victim that no sentence other than a term of imprisonment, some of which is to be immediately served, is appropriate. I have regard to the presumption of cumulative sentences but I propose to order some concurrency to allow for overlap in criminal culpability across more than one offence to achieve a total sentence which is a just and appropriate measure of your total criminality. The nature of the offending is such that I cannot be satisfied that you pose no ongoing risk.
Julien Benson, you are convicted on complaint 91312/22, counts 1 to 14 inclusive, except for count 6 which I have dismissed. I am not satisfied that you do not pose a risk of committing a reportable offence within the meaning of that term in the Community Protection (Offender Reporting) Act 2005 in the future. I make an order directing that the Registrar cause your name to be placed on the Register and that you comply with the reporting obligations under the Act for a period five years from your release.
Counts 1 to 5 involve criminal conduct of the same character but across five devices. I impose one sentence. On those counts you are sentenced to imprisonment for four months from today.
The conduct which was the basis of counts 7 and 11 is related. You caused her to transmit the material to you, and you produced child exploitation material by saving screen shots and captures of the material she sent and your streamed conversations. It is the conduct which resulted in your possession of the material. It carries greater criminality warranting a longer sentence but should be served concurrently. For those two counts I impose one sentence, a term of imprisonment of nine months from today.
As to the remaining Counts 8, 9, 10, 12, 13 and 14 I consider they can properly be dealt with together and made subject to one sentence. The Commonwealth has submitted that separate sentences should be imposed for the reasons specified but in the particular circumstances of this case those charges concern, and arise from, the same course of conduct designed to punish the victim after she told you that she no longer wished to communicate with you. The fact that the material was child abuse material is intrinsically linked to the manner in which your acts were menacing, harassing and offensive. You saved the material to the cloud and to backups, transmitted the material to one particular user via the Google link, and then, in an organised and methodical way, motivated by spite and revenge, you published the material and menaced and harassed her in the various ways I have explained. For those counts I impose one sentence. You are sentenced to imprisonment for 18 months, cumulative to the term imposed on counts 7 and 11.
The result is a total sentence of imprisonment for two years and three months from 14 December 2023.
I order that you be released after having served 12 months of that term upon you giving security by recognisance without surety in the sum of $5,000 that you will be of good behaviour for a period of two years from your release. The conditions of that order will be that, during that period, you:
(a) be subject to the supervision of a probation officer appointed in accordance with the order; and
(b) obey all reasonable directions of the probation officer; and
(c) not travel interstate or overseas without the written permission of the probation officer; and
(d) undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
You are required to report to Community Corrections, 75 Liverpool Street, Hobart, within two days of your release from custody. The purpose of the recognizance release order I have just made is to provide an incentive for you not to re-offend and to encourage your rehabilitation. If you fail to comply with a condition of the recognizance, for example by committing some further offence, you may be called upon to pay the sum of $5,000, and a court may order that you serve the remainder of the term.