A musical-theatre couple from Berwick who collected copious child abuse material and fantasised about inflicting violent, sadistic abuse on children known to them have had their jail terms reduced on appeal.
Tristian Cullinan-Smayle, 38, had been jailed in 2023 by the Victorian County Court for 10 years, with a non-parole period of six years and seven months.
On appeal, his resentencing on 22 May totalled nine years jail with a six-year non-parole period.
Cullinan-Smayle had pleaded guilty to 22 charges against 18 identified child victims including using social media to procure child abuse material from two children under 16.
He possessed more than 3000 images and videos of child abuse material – 85 per cent being the most serious category.
He had also exchanged a large amount of child abuse images, videos and text with his partner Benjamin Heels.
The couple, who were both part of the South East amateur performing arts scene, had committed much of the offending together.
Cullinan-Smayle was a chef running his own baking business and volunteering for performing arts groups.
Heels was a music teacher at Fountain Gate Secondary College and a private music tutor for three performing art studios.
Both were without prior convictions and had Working with Children checks at the time.
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.”
In the Supreme Court of Appeal on 22 May, judges Rowena Orr and Stephen Kaye noted that there was now a lack of parity with Heels’s sentence, whose jail term was substantially reduced on appeal last year.
“As a consequence of the successful appeal against sentence by Heels, it would not be possible to justify the differentiation that has resulted between the sentences imposed on (Cullinan-Smayle) and the sentences that are now imposed on Heels.”
Heels’ jail term of 11 years with a non-parole period of seven years and three months was found to be “manifestly excessive” by the Court of Appeal.
It was reduced to eight years with a five-and-a-half year non-parole period.
The court found a sentencing “error” conceded by prosecutors at the Court of Appeal, in which 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 3000.
After both resentencings, Justices Orr and Kaye stated it was “appropriate” that Cullinan-Smayle’s jail term now exceeded Heels’ sentence – despite the reverse in their original sentencings.
This was because his possession and transmission of child abuse material was “significantly graver”, and that he was also the “instigator” of much of the offending.
Heels was also found to have made fuller admissions to police.
On the other hand, Heels was the only one to commit sexual assaults against two children during private music lessons, in which the victims weren’t aware of the offending.
