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District Court 25 October 2019

R v MB

[2019] NSWDC 922

Sexual offences
SENTENCING COMMONWEALTH OFFENDING CHILD PORNOGRAPHY MATERIAL

Citation: R v MB [2019] NSWDC 922
Court: District Court of New South Wales
Date: 25 October 2019
Judge(s): Payne DCJ

Background

The offender, a 52-year-old former member of the Royal Australian Air Force, was sentenced after pleading guilty to one count of intentionally importing a Tier 2 prohibited good into Australia without approval, contrary to s 233BAB(5) of the Customs Act 1901 (Cth). The prohibited item was a child sex doll made of silicone, approximately 70 centimetres tall, which depicted a child under five years of age. The package was intercepted by Australian Border Force in June 2018, having been sent from China.

A subsequent examination of the offender's iPad revealed browsing histories referencing the tracking of the shipment, searches for similar products on commercial websites, access to approximately 263 YouTube videos depicting prepubescent girls performing gymnastic stretches, and approximately 253 stored images of prepubescent females in similar poses. The offender was arrested in September 2018 following a search warrant executed at his residence.

The offender had served 27 years in the Royal Australian Air Force before being dismissed in March 2019 as a consequence of the pending charge. He lived alone, had no meaningful prior criminal history, and had documented diagnoses of post-traumatic stress disorder, major depressive disorder, and alcohol use disorder.

  • What was the appropriate sentence for an offence of importing child pornography material as a Tier 2 good under s 233BAB(5) of the Customs Act 1901 (Cth)?
  • To what extent should the offender's military service, mental health history, guilty plea, and lack of prior criminal history reduce the sentence?
  • What weight should be given to general deterrence relative to the offender's subjective circumstances?
  • Whether the court could determine the offender's motivation for the importation, and what consequences flowed from that finding.
  • Whether a non-custodial outcome under s 20(1)(b) of the Crimes Act 1914 (Cth) was appropriate.

Decision

Payne DCJ accepted that the offence was objectively serious, noting that the maximum penalty of ten years' imprisonment served as a yardstick. His Honour found that general deterrence was a significant feature of the sentencing exercise, consistent with the treatment of child pornography offences generally.

The court was unable to find, beyond reasonable doubt, the offender's motivation for importing the doll. The Crown had implied a more serious background to the offending, but his Honour declined to act on that implication, sentencing the offender strictly for what he had done: the intentional importation of a prohibited Tier 2 good. The benefit of any finding that would have increased the sentence had to be established to the criminal standard, and it was not.

In the offender's favour, the court considered his 27 years of military service, his guilty plea (attracting utilitarian discount), his lack of meaningful prior criminal history, his diagnosed mental health conditions, his dismissal from employment as a form of extra-curial punishment, and the psychological assessment that he was at low risk of reoffending and suitable for community service. His Honour formed the view that the offender had reasonable prospects of rehabilitation, while making no definitive finding as to likelihood of reoffending.

The court assessed a pre-discount sentence of three years' imprisonment, reduced to two years and three months to reflect the utilitarian value of the guilty plea. His Honour then exercised the discretion under s 20(1)(b) of the Crimes Act 1914 (Cth) to release the offender forthwith upon entering a recognizance, rather than imposing a term of actual imprisonment.

Orders Made

  • The offender was convicted of one count contrary to s 233BAB(5) of the Customs Act 1901 (Cth).
  • A sentence of two years and three months was imposed (reduced from a pre-discount starting point of three years).
  • The offender was released forthwith pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), upon entering a recognizance of $500, subject to the following conditions:
  • Attendance upon Community Corrections at Bowral within seven days, and acceptance of supervision for two years (including psychological counselling and treatment as directed).
  • Good behaviour for a period of three years from the date of sentence.
  • The child-like sex doll was forfeited to the Commonwealth pursuant to s 23ZD of the Crimes Act 1914 (Cth), on the application of the Director of Public Prosecutions and by consent.

Key Takeaways

  • Under s 233BAB(5) of the Customs Act 1901 (Cth), the importation of a child sex doll without approval constitutes a Tier 2 goods offence carrying a maximum penalty of ten years' imprisonment and/or 2,500 penalty units, with child sex dolls classified as child pornography material for this purpose.

  • Where the Crown asserts that an aggravating circumstance (such as motive) makes an offence more serious, the sentencing court must be satisfied of that circumstance beyond reasonable doubt before it can be taken into account adversely to the offender.

  • General deterrence carries significant weight in sentencing for child pornography-related offences, even where the offender's subjective features are otherwise favourable.

  • A guilty plea, lengthy military service, diagnosed mental health conditions, and dismissal from employment can, in combination, support a non-custodial outcome under s 20(1)(b) of the Crimes Act 1914 (Cth), even for an objectively serious Commonwealth offence.

  • Dismissal from employment as a direct consequence of an offence was treated by the District Court as a relevant form of extra-curial punishment in assessing the overall sentencing outcome.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233BAB(5)
- Crimes Act 1914 (Cth), ss 16A(1), 20(1)(a), 20(1)(b), 23ZD

Cases:
No cases were cited in the judgment as provided.