By Cam Lucadou-Wells
A musical director and teacher convicted of child sex assaults as well as more than 20 online child exploitation offences has had his jail term reduced on appeal.
Benjamin Heels, 35, had been earlier sentenced at the Victorian County Court to up to 11 years’ jail with a seven-year-and-three-month non-parole period.
On 27 June, Victorian Court of Appeal judges Phillip Priest and Richard Niall found the total sentence and the non-parole period were “manifestly excessive”.
They resentenced Heels to eight years’ jail with a five-and-a-half-year non-parole period.
Heels had pleaded guilty to sexually assaulting two children under 16 and four counts of sexual activity in the presence of children.
He also pled to possessing child abuse material and 21 counts of transmitting child abuse material, in some cases described by the original judge as “explicit and degrading”, “demeaning” and “depraved”.
Heels’s own “brazen” offending with no apparent regard for the child’s welfare was described by the original judge as a “significant” breach of trust.
He had taught singing, piano and drama to children as young as eight at his home, at a school and other venues in the South East.
Some of his students were among his 19 victims.
He and his co-offending partner Tristan Cullinan-Smayle – who was jailed for up to 10 years – had together taken part in musical productions in the South East.
They had fantasised about inflicting violent, sadistic and “seriously depraved” abuse of children known to them, according to the original sentencing judge.
“It is deeply depraved, confronting, explicit and without exception, provides extreme examples of child abuse,” the original judge said of the couple’s online chats.
“It explicitly describes violence, humiliation, and sadistic acts towards young and very young human beings.”
However, in a sentencing “error” conceded by prosecutors at the Court of Appeal, Heels was originally meted the same jail term for possessing child abuse material as Cullinan-Smayle.
This was despite Heels being found with 820 child abuse images and videos and Cullinan-Smayle with more than 2000.
Sentences on two other charges against Heels were “beyond the permissible range”, the Department of Public Prosecutions also conceded.
Justices Priest and Niall stated there needed to be significant “concurrency” due to most charges occurring in a single month as well as most of the transmitted child-abuse material being “written fantasies”.
“Albeit that the content of these written communications was vile, no children were harmed or actually physically abused in order to produce the transmitted child abuse material.
“That said, the distribution of prose describing child sex abuse, especially where it is done for the purposes of sexual gratification, has the tendency to normalise or encourage child sex abuse, ignore the harm that such abuse occurs and undermine the unequivocal societal standard that such abuse is abhorrent.“
The judges also noted that the two students remained unaware of the “depraved” sexual offending perpetuated upon them and videoed by Heels.
The videos were transmitted to Cullinan-Smayle, with no evidence of them being sent to a wider audience.
Heels also made substantial admissions to police, while Cullinan-Smayle opted to not answer police questions, Justices Priest and Niall stated.
The applicant was assessed as not having a sexual interest in children but having “capitulated” into watching child pornography on the urging of Cullinan-Smayle.
These factors – along with Heels’ prior good character, very early guilty plea and the impacts of Covid on prison conditions – were not properly balanced in the original sentence, the judges stated.
