STATE OF TASMANIA V BENJAMIN JOHN BERRY 10 NOVEMBER 2020
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, Benjamin John Berry, aged 27 at the time of the offending, has pleaded guilty to five counts of [Section 125D Amended by No. 8 of 2020, s. 5, Applied:06 Apr 2020] grooming with intent to procure a child for sexual abuse.
Throughout 2019, the defendant was the operator of a Snapchat account “benno09er” on devices including a Samsung tablet. That account identified the full name of the user as “Benno Berry”. He was also the operator of an Instagram account with an account name “benno09er”.
Between June 2019 and August 2019, the defendant made contact via this Snapchat account with the accounts of girls aged between 13 and 16. Messages sent from his account included a number of sexually explicit messages, in which the defendant requested contact with the girls or photographs from them, photographs of his penis and naked torso, and requests for explicit sexual acts. He offered significant sums of money, alcohol and cannabis in exchange for sex.
The defendant represented himself to be 16-20 years of age during a number of these conversations.
Upon initial analysis of the defendant’s tablet and phone, a number of other conversations were located within both the Snapchat and Instagram applications. Some of the accounts with whom the defendant interacted could not be linked to any specific person.
On 2 August 2019, the complainant told her mother, AC, about the messages she had received from the defendant. Using information received from AC, a friend, SF messaged the defendant to arrange a meeting.
The defendant had previously messaged SF, an adult, over social media in June and July 2019. During those messages, the defendant had sent to SF similar images as had been sent to the complainant, including a picture of cash with the caption “1275 there and a bag of dope hehe x”, and the same photo of his penis.
On 2 August 2019, SF messaged the defendant, “Hey benno do u wanna meet up tonight ? If so where abouts do u wanna meet up?” Ultimately, an arrangement was made for SF and the defendant to meet the following day, 3 August, at a park on Allunga Road, Chigwell. That morning, the defendant sent a number of messages to SF, including further picture messages of cash, his penis and the photo of his naked torso, also sent to another complainant. Messages of the same tone and spelling were sent to SF as had been sent to the child complainants, including requests for photographs of her “titts” and repeated requests for sexual intercourse without the use of protection.
The defendant arrived to meet SF at approximately 12pm. SF, her mother and grandfather confronted the defendant about sending messages to the complainant. The defendant denied sending any messages. SF called police to attend.
The defendant was interviewed but requested to terminate the interview before being asked about the other complainants. He was charged and bailed.
These crimes occurred over a five day period. The defendant accepts he made the communications that are the subject of the counts on the indictment, but he has almost no recollection of doing so. The period in the indictment coincided with a time in his life where his abuse of drugs reached a peak level.
In May 2019, he resigned from a position he had held for three years as bar tender in an Hotel. His resignation was in response to behaviour and treatment he perceived as ‘bullying’ from a new Manager. He had withstood this Manager’s treatment of him for some months.
After his resignation, his drug use increased substantially. He used his savings on illegal drugs and would obtain drugs on credit, borrowing money to fund them at a later stage. The drugs he used included speed, ice, cocaine, cannabis and various pills of unknown drug content. He spent his days in his room, alone or with people invested in the illegal drugs market.
Around the time he was charged, his mother was going through a relationship breakdown, which upset him. He moved in with his ex-partner, at her suggestion, with the express intention of weaning himself off his addictions. He described having no drugs whatsoever and the process of detoxification taking two to three weeks as the hardest thing he has ever done in his life. He didn’t seek medical assistance at the time, but commencing in late 2019, he attended various drug and alcohol meetings run by the Salvation Army.
In September 2019, he was referred to a Psychologist, Jon Visiou. He had been placed on anti-depressant medication at the time, and he met with Mr Visiou around 10 – 11 times. The defendant professes to having never experienced, privately or outwardly, an attraction or a sexual interest in young teenage females. He is deeply remorseful and describes his conduct as “shameful”. He cannot believe that his drug induced conduct was his own conduct.
The defendant has been of previously good character and has no relevant prior convictions. He has pleaded guilty to these charges and is entitled to credit for that. He is now drug free and has been so since weaning off drugs in August 2019.
The defendant is convicted of each of the 5 counts of grooming with intent to procure a child for sexual abuse. I am not satisfied that he poses no risk of re-offending, and I order accordingly under the Community Protection (Offender Reporting) Act 2005 that his name be placed on the register, and that he comply with the obligations under that Act for a period of three years from today.
I order the forfeiture to the Crown of the Samsung Tablet and the Apple iPhone seized from the defendant.
The use of social media and online platforms by adults to prey on children for sexual gratification is reprehensible. Young, curious, naive and malleable children are to be protected from such predatory behaviour, and general deterrence and condemnation are thus powerful sentencing considerations, even where a particular defendant’s character is such that his or her conduct might be seen as an isolated aberration and remorse and rehabilitation suggests that personal deterrence is not required.
The defendant is sentenced to a period of 15 months’ imprisonment which sentence I wholly suspend on the condition that he commit no offence punishable by imprisonment for a period of two years. In addition I make a community correction order for an operational period of 3 years a condition of which order is that the defendant complete, within that period, 147 hours of community service.