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District Court 19 August 2016

R v Miao

[2016] NSWDC 181

Sexual offences
CRIMINAL LAW SENTENCE FORM 1 COMMONWEALTH AND STATE OFFENCES POSSESSING CHILD ABUSE MATERIAL CHILD SEX DOLL

Citation: R v Miao [2016] NSWDC 181
Court: District Court of New South Wales
Date: 19 August 2016
Judge: Berman SC DCJ

Background

The offender, a Chinese-born man who came to Australia in 2006 to complete postgraduate studies, was found in possession of child abuse material stored across multiple devices and a laptop seized during a police search. The material included 361 images and 56 videos depicting approximately 123 children, the majority under the age of 10, with some being infants.

Police also discovered a child sex doll body in the offender's bed. He had ordered the anatomically correct silicon mannequin from an overseas manufacturer through an Australian agent, separately requesting a vaginal insert at additional cost. The doll body was delivered; the head and vaginal insert were intercepted by the Australian Border Force and never reached him.

The offender faced sentence on two charges: using a carriage service to access child pornography (a Commonwealth offence, maximum 15 years) and possessing child abuse material (a State offence, maximum 10 years). A further charge of possessing child abuse material relating to the child sex doll was placed on a Form 1 to be taken into account on sentencing for the State offence.

  • What is the appropriate sentence for the Commonwealth offence of using a carriage service to access child pornography?
  • What is the appropriate sentence for the State offence of possessing child abuse material, taking into account the Form 1 matter concerning the child sex doll?
  • Whether a sentencing judge is required to view tendered sample videos of child abuse material.
  • What weight, if any, should be given to the offender's denials of sexual motivation and to the psychologist's evidence about low reoffending risk.
  • Whether a full-time custodial sentence was warranted, or whether alternatives such as an Intensive Corrections Order were appropriate.

Decision

Opening principle: disgust versus criminality. Berman SC DCJ opened by emphasising that a sentencing court is not a court of morals. Not all offensive or disturbing conduct is criminal, and a judge must not allow feelings of disgust to produce an inappropriately severe sentence. The correct approach is to assess objective gravity by reference to established factors, particularly the harm caused to victims.

Rejection of the offender's denials. The offender told police he had not intended to use the doll sexually and did not obtain gratification from the child abuse material. The court rejected both claims without hesitation. The offender had specifically ordered a doll "with sexual function" and separately paid for the vaginal insert, which served no other purpose. Given those inconsistencies, the court placed no weight on his self-serving statements to police or to his treating psychologist.

The tender of sample material. The Crown sought to tender a disc containing over 72 minutes of representative videos for the sentencing judge to view if he wished. The court rejected this tender. Berman SC DCJ held that it is not appropriate for material to be tendered on a "you may view it if you like" basis: if material is tendered, the judge is obliged to view it. The court found it unnecessary and inappropriate to require a judge to watch over an hour of child abuse material, concluding there was a real risk such viewing would produce emotional reactions inconsistent with objective sentencing. The court also noted that viewing the material in judicial proceedings itself contributes to the harm suffered by the children depicted.

Psychologist's evidence and rehabilitation. The offender's psychologist gave evidence that she saw no danger of repeat behaviour and assessed his reoffending risk as low. The court gave this limited weight. The offender had not given sworn evidence confirming what he told the psychologist, his account to the psychologist was inconsistent with other evidence, and the psychologist had no prior experience treating anyone for child pornography offending. She was treating the offender for obsessive compulsive personality disorder and depression, not for any paraphilia. The court found it could not conclude that prospects of rehabilitation were good, and identified a need for both personal and general deterrence.

Sentence. The court imposed a fixed term of 15 months imprisonment for the Commonwealth offence, commencing 19 August 2016. For the State offence (taking into account the Form 1 matter concerning the doll), the court imposed a sentence with a non-parole period of 12 months and a head sentence of 2 years, commencing 19 November 2016. Special circumstances were found on account of this being the offender's first time in custody and his psychological conditions. The overall sentence comprised a total non-parole period of 15 months, expiring 18 November 2017, with a total head sentence of 2 years and 3 months.

Orders Made

  • Commonwealth offence (using a carriage service to access child pornography): fixed term of imprisonment of 1 year and 3 months, commencing 19 August 2016.
  • State offence (possessing child abuse material, taking into account Form 1 relating to the child sex doll): imprisonment consisting of a non-parole period of 12 months and a head sentence of 2 years, commencing 19 November 2016.
  • Total non-parole period: 1 year and 3 months, expiring 18 November 2017.
  • Total head sentence: 2 years and 3 months.
  • Offender to be released to parole at expiration of the non-parole period.

Key Takeaways

  • A sentencing court must guard against allowing feelings of disgust to distort the objective assessment of an offender's culpability, even where the conduct is disturbing in nature.
  • Tendering material to a sentencing judge on the basis that the judge "may wish" to view it is procedurally improper: if material is tendered, the judge is obliged to view it. The District Court declined to require a judge to view over 72 minutes of child abuse material, finding this unnecessary and potentially prejudicial to impartial sentencing.
  • Where an offender's denials to police and to a treating psychologist are contradicted by objective evidence, a sentencing court may reject those self-serving accounts and reduce the weight given to expert evidence founded on them.
  • Psychological evidence about low reoffending risk carries diminished weight where the expert has no prior experience in the relevant area of offending and has not treated the offender for any relevant paraphilia.
  • Even where an offender claims to have collected child abuse material without sexual motivation, the objective gravity of the offending remains high because of the harm caused to children in the production of that material, irrespective of the collector's subjective purpose.

Legislation and Cases Referenced

Legislation:
- The Commonwealth carriage service offence (using a carriage service to access child pornography, maximum penalty 15 years imprisonment)
- The State offence of possessing child abuse material (maximum penalty 10 years imprisonment)
- Form 1 procedure under NSW sentencing legislation

Cases:
- Vincenzo Jon Fedele v R [2015] NSWCCA 286