Citation: R v Garcia [2020] NSWDC 553
Court: District Court of NSW
Date: 13 July 2020
Judge: Haesler SC DCJ
Background
The offender, a 52-year-old man, pleaded guilty in the Local Court to two serious offences: possessing child abuse material under s 91H(2) of the Crimes Act 1900 (NSW), and possessing a child-like sex doll under s 273A.1 of the Criminal Code 1995 (Cth). A further s 91H offence was placed on a Form 1 to be taken into account on sentencing.
Police were called to the offender's home in November 2019 following a Triple-0 call raising welfare concerns. After forcing entry to the empty unit, police discovered a mobile phone on the floor displaying child abuse images. A subsequent investigation uncovered two further phones containing child abuse material, and a plastic child's doll that had been crudely modified for sexual use. Videos on the phones showed the offender engaging in simulated intercourse with the doll.
The agreed facts established that the offender was a heavy drinker who regularly called the Police Assistance Line and expressed suicidal ideation, particularly when intoxicated. The material was accessed and the conduct occurred predominantly in the early hours of the morning after heavy drinking.
Legal Issues
- How to assess the objective seriousness of each offence, particularly in the context of recently enacted Commonwealth legislation targeting child-like sex dolls
- Whether the INTERPOL Baseline Classification system adequately captured the gravity of the child abuse material
- What weight to give to mitigating factors including a guilty plea, first-offender status, alcoholism, mental health issues, extracurial punishment, remorse, and strong family support
- How to structure concurrent and cumulative sentences across State and Commonwealth offences
- Whether special circumstances existed to justify variation of the standard non-parole period ratio
Decision
Objective seriousness of the child abuse material offence
His Honour found that the overall collection of material sat at the lower end of matters typically prosecuted under s 91H(2). The large volume of Category 1 images was noted as significant, but the content did not, in the main, depict cruelty or physical harm to children. There was no evidence of planning, organisation, or sophistication in acquiring or storing the material, and no proximity between the offender and those who produced it. The court acknowledged the limits of the INTERPOL Baseline Classification in conveying the full nature of material without viewing it, but accepted that viewing was unnecessary here.
Objective seriousness of the child-like sex doll offence
Section 273A.1 was inserted into the Criminal Code in September 2019 by the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth), making this one of the first cases to deal with the provision. The maximum penalty of 15 years' imprisonment signals that Parliament treats possession of such objects as extremely serious. His Honour accepted, however, that the modified plastic toy was not lifelike and was used only for the offender's private gratification. There was no evidence of any desire to perform acts on a real child, and the item was not connected to any commercial market. The court found the offending at the lower end of the range for this offence, while recognising Parliament's intention to stamp out conduct that objectifies children.
Mitigating factors
His Honour gave substantial weight to several mitigating factors: the early guilty plea, the absence of prior convictions, strong family support, genuine remorse accepted as honest, a mental health care plan in place, and the offender's efforts over the preceding six months to address his alcohol addiction. The court also recognised that the offender had already experienced significant extracurial punishment and would be a vulnerable person in custody. Special circumstances were found to exist, justifying an adjustment of the non-parole to parole ratio to 50 percent.
Structure of sentences
The State and Commonwealth sentences were structured to run partly concurrently and partly cumulatively. His Honour noted the practical and legal complexity of sentencing for offences under both State and Commonwealth frameworks, and structured the terms to ensure an overall sentence that was proportionate across both offences without resulting in a crushing outcome for a first offender with genuine prospects of rehabilitation.
Orders Made
- State offence (possess child abuse material, s 91H(2) Crimes Act 1900 NSW): convicted and sentenced to imprisonment for 1 year and 10 months, comprising a non-parole period of 11 months (from 13 July 2020, eligible for parole 12 June 2021) and a parole period of 11 months (expiring 12 May 2022); special circumstances found, resulting in a 50% non-parole ratio.
- Commonwealth offence (possess child-like sex doll, s 273A.1 Criminal Code 1995 Cth): convicted and sentenced to imprisonment for 1 year and 6 months, commencing 13 January 2021 and expiring 12 July 2022.
- Directed to be released after serving 6 months of the Commonwealth sentence (on 12 July 2021) upon entering a recognisance to be of good behaviour for 2 years in the sum of $400, pursuant to s 21B Crimes Act 1914 (Cth).
- Conditions of recognisance: report to Community Corrections within 7 days of release; obey all directions of that service, including psychological treatment and compliance with a mental health care plan.
- Leave granted to apply in chambers for forfeiture orders.
- Community Corrections directed to note the offender's history of suicidal ideation on his file.
- The offender was also advised (though this was not part of the sentencing orders) that he would be placed on the sex offender register.
The practical effect, as explained to the offender, was a total of approximately 12 months in custody before release on the recognisance.
Key Takeaways
- Section 273A.1 of the Criminal Code 1995 (Cth), introduced in September 2019, carries a maximum of 15 years' imprisonment and reflects Parliament's clear intention to treat possession of child-like sex dolls used to simulate sexual intercourse as a serious criminal matter, regardless of whether any real child was directly harmed.
- Objective seriousness under the new doll provision is still to be assessed on the full circumstances of the particular offending; the court found the conduct here, involving a crudely modified plastic toy used privately with no commercial connection, sat at the lower end of the range.
- A conviction for possession of child abuse material under s 91H(2) does not require proximity to those who created the material, but factors such as the absence of planning, sophistication, or dissemination risk remain relevant to the assessment of objective seriousness.
- The INTERPOL Baseline Classification system was identified as providing only limited assistance in communicating the gravity of child abuse material in sentencing proceedings, particularly without viewing the material itself.
- Genuine first-offender status, early guilty plea, demonstrated efforts at rehabilitation, strong community support, mental health vulnerabilities, and extracurial punishment can collectively justify significant mitigation, including a finding of special circumstances reducing the non-parole period below the standard ratio.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 91H(2)
- Criminal Code 1995 (Cth), s 273A.1
- Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth)
- Crimes Act 1914 (Cth), s 21B
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
Cases
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Henry v R (1999) 46 NSWLR 346
- Hoare v The Queen (1989) 167 CLR 348
- Holland v R [2005] WASCA 140; (2005) 154 A Crim R
- Markarian v The Queen (2005) 228 CLR 357
- Minehan v R [2010] NSWCCA 140
- Mouscas v R [2008] NSWCCA 181
- R v Herring (1956)