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District Court 7 March 2025

CDPP v LE GAY BRERETON

[2025] NSWDC 46

Sexual offences

Citation: [2025] NSWDC 46
Court: District Court of New South Wales
Date: 7 March 2025
Judge: Everson SC, DCJ

Background

In June 2023, police executing search warrants at an industrial warehouse unit in Kings Park discovered a child-like sex doll. The warrants had originated from a cannabis investigation that included surveillance of the offender and premises associated with him. The offender was subsequently arrested and his phone was seized for forensic examination.

The offender faced a single Commonwealth charge of possessing a child-like sex doll contrary to s 273A of the Criminal Code 1995 (Cth). That provision was introduced in September 2019 to address concerns that such dolls may desensitise users to child harm, objectify children as sexual beings, and potentially be used to groom children.

After a three-day trial, the jury returned a guilty verdict on 14 February 2025. The judgment under summary here is the sentencing decision delivered on 7 March 2025.

Legal Issues

  • What facts were established to the relevant standard of proof following a jury verdict, for the purpose of sentencing?
  • How should the objective seriousness of the offence be assessed, including whether the doll's characteristics warranted aggravating findings?
  • What sentence was appropriate in light of the principles governing Commonwealth child sex offences, including whether a period of immediate full-time custody was required?
  • Whether the offender should be placed on the Child Protection (Offenders Registration) Act 2000 (NSW) register.

Decision

Issue 1: Findings of fact following the jury verdict

The court approached sentencing on the basis that facts adverse to the offender could only be taken into account if established beyond reasonable doubt, while matters in the offender's favour required proof on the balance of probabilities (at [3]). Because a jury's verdict is inscrutable, the court drew only those inferences firmly supported by the verdict and the evidence before it (at [4]-[6]).

The court was not satisfied beyond reasonable doubt that the offender intentionally possessed the doll for any period beyond the day of discovery, and could not determine how it came to be in his possession (at [9]). The doll's overall characteristics resembled a person who appears to be under 18 years of age, with its face and a Disney character hairclip being the most striking child-like features, though the court was not satisfied it resembled a pre-pubescent child (at [10]). The offender was reckless as to the resemblance, meaning he was aware of a substantial risk, but the court was not satisfied he actually knew or positively believed the doll resembled a minor (at [11]). The court was also not satisfied the offender had ever used the doll to simulate sexual intercourse (at [12]).

Issue 2: Objective seriousness

The court assessed the offending as devoid of aggravating factors. No evidence supported an inference that the offender desired to perform sexual acts on a real child (at [19]). The concealed location of the doll was treated as a neutral factor, on the basis that embarrassment about possessing any sex doll could explain the concealment regardless of its child-like appearance (at [17]). Equally, no objective mitigating factors applied (at [20]).

Issue 3: The appropriate sentence

Denunciation and general deterrence were identified as significant sentencing considerations (at [36]). The court accepted the principle, applied in cases involving child abuse material, that imprisonment is ordinarily required absent exceptional circumstances, and concluded that no penalty other than imprisonment was appropriate here (at [36]). However, the offender's good rehabilitative prospects, supported by family, ongoing psychiatric treatment for ADHD, and over a year of compliance with strict bail conditions, were taken into account (at [37]). The court imposed a two-year term of imprisonment with immediate release upon entry into a recognisance, structured under s 20(1)(b) of the Crimes Act 1914 (Cth) applicable to Commonwealth child sex offences.

Issue 4: Sex offender registration

The court refused the prosecution's application for an order under s 3D of the Child Protection (Offenders Registration) Act 2000 (NSW). The court found no evidence, direct or indirect, that the offender poses a risk to the lives or sexual safety of any child or children generally, and noted that a finding of risk requires something stronger than police or prosecutorial speculation or suspicion.

Orders Made

  • The offender is convicted of the s 273A charge.
  • A term of imprisonment of 2 years is imposed, dating from 5 September 2024 and expiring 4 September 2026.
  • The offender is released forthwith upon entering into a recognisance of $1,000 to be of good behaviour for 1 year and 6 months, with conditions including supervision by Community Corrections, compliance with reasonable directions from Community Corrections, and participation in such treatment or rehabilitation programs as directed.
  • The child-like sex doll tendered in evidence is forfeited.
  • The prosecution's application for registration under s 3D of the Child Protection (Offenders Registration) Act 2000 (NSW) is refused.

Key Takeaways

  • Section 273A of the Criminal Code 1995 (Cth) is established as capturing possession of a doll whose overall characteristics resemble a person appearing to be under 18 years of age, with the fault element of recklessness sufficient for conviction even where the offender did not actually know or believe the doll resembled a minor (at [10]-[11]).

  • A sentencing court applying inscrutable-verdict principles after a jury trial may only make factual findings adverse to an offender where those facts are established beyond reasonable doubt, and must be careful not to treat every contested issue as a binary choice between aggravating and mitigating extremes (at [3]-[5]).

  • Imprisonment is ordinarily warranted for Commonwealth child sex offences involving child-like sex dolls, consistent with the approach taken in child abuse material cases, though the specific sentence turns on the particular facts of each case (at [36]).

  • Refusing registration under s 3D of the Child Protection (Offenders Registration) Act 2000 (NSW) is appropriate where the evidence does not establish, beyond mere suspicion or speculation, that the offender poses a risk to the lives or sexual safety of children.

  • The absence of any evidence linking possession of a child-like sex doll to a desire to perform sexual acts on a real child, combined with good rehabilitative prospects and an otherwise uncharacteristic criminal record, can weigh significantly in the overall sentencing assessment, even where immediate imprisonment remains necessary (at [19], [25], [37]).

Legislation and Cases Referenced

Legislation
- Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth)
- Crimes Act 1914 ( Cth)
- Criminal Code 1995 ( Cth)
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- The Queen v Killick [2016] 259 CLR 256
- Weininger v The Queen (2003) 212 CLR 629
- Johnson v The Queen (2004) 78 ALJR 616
- Dinsdale v R [2000] HCA 54
- O'Neill v Commissioner of Police [2020] NSWSC 1805
- R v Hutchinson [2018] NSWCCA 152
- R v Booth [2009] NSWCCA 89
- CDPP v Garside [2016] VSCA 74
- R v Garcia [2020] NSWDC 553