District Court New South Wales Medium Neutral Citation: R v Miao [2016] NSWDC 181 Hearing dates: 17th August 2016 Date of orders: 19 August 2016 Decision date: 19 August 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an overall term of imprisonment consisting of a non-parole period of 1 year 3 months and a head sentence of 2 years and 3 months. Catchwords: CRIMINAL LAW – Sentence- Form 1 – Commonwealth and State offences – Use a carriage service to access child pornography – Possessing child abuse material - Difference between disgusting behaviour and criminal behaviour - Child sex doll Cases Cited: Vincenzo Jon Fedele v R [2015] NSWCCA 286 Category: Sentence Parties: The Crown Zhiguo Miao Representation: Counsel: Mr McGrath – Crown Ms S Hall - Offender Solicitors: Director of Public Prosecutions Benjamin and Leonardo Criminal Defence Lawyers File Number(s): 2014/187114; 2013/231791 SENTENCE 1. This Court is not a Court of morals. Not all behaviour which is strange, or offensive, or even disgusting is criminal and sentencing judges have to be careful not to allow a sense of disgust to lead to an inappropriately severe sentence being imposed upon an offender. What is required is that the judge evaluate the objective gravity of an offender's conduct by considering well accepted factors which include of course the harm that an offender's conduct cause to the victims of it. I have begun these remarks on sentence this way because of the disturbing nature of one aspect of this offender's criminal behaviour. 2. There is apparently at least one factory operating overseas which produces "child sex dolls" for sale to the public. These are anatomically correct mannequins made of silicon. The offender decided that he would like to buy such an object. He contacted the Australian agent for the company which sold the sex dolls and asked whether the 132cm child doll, with sexual function, was available in Australia. The agent, a man called James Stanley Friess, replied the same day by telling the offender that "the 132 cm doll is sold as a non- sex doll. Although not illegal in Australia, it is delivered with a blank plug. The factory will send you the vagina insert as a separate delivery for an additional $70". 1. A couple of days later the offender ordered the doll specifying a number of features of the doll he would like, and then in a later email asked that the vagina insert is shipped separately. He paid about $4000 Australian dollars. Two packages were thus sent to the offender from somewhere overseas. The first was detected by the Australian Customs and Border Protection Service. It contained the head of the doll and the silicon vaginal insert. Those items were seized by police and never delivered to the offender, however the second package which contained the child mannequin body was delivered. Police later went to the accused's premises they executed a search warrant and discovered a number of items which have led to the offender being charged and facing sentence today. 2. They located the child mannequin body in the offender's bed dressed in a satin dressing gown. The accused later told police that he did not plan to use the doll sexually. I have absolutely no hesitation in rejecting that claim. Firstly as I have noted the offender ordered a doll "with sexual function". Secondly it is apparent that the vaginal insert had but one purpose, to allow the doll to be used sexually. If the offender did not plan to use the doll sexually he would not have needed to order, and pay for, the vaginal insert. 3. Further searching of the offender's premises revealed a number of storage devices and a laptop computer. These were seized and examined. Child pornography was found to be stored on the devices. An analysis of that material revealed that there were approximately 123 different children depicted in the videos and images found on the storage devices, the majority of whom were aged under 10. Indeed some of them were infants. 4. As is conventionally and very helpfully the case, police officers have classified the material according to the Child Exploitation Scale. There were a total of 361 images and 56 videos found. The majority of the images and about half of the videos depicted erotic posing with no sexual activity. There were 29 images and 11 videos showing penetrative sexual activity between children or adults and children. There were 17 images and 3 videos depicting sadism humiliation or bestiality. The offender was also found to have a significant collection of adult pornography. The child pornography represented about 5% of all the pornography possessed by the offender. 5. The offender told police that he didn't get sexual gratification from the child abuse material. Given that he falsely told police he wasn't going to use the doll for a sexual purpose, I place no value on the offender's claim. 6. The offender now faces sentence for 2 specific matters. The first is an offence of using a carriage service to access child pornography, a Commonwealth offence for which the maximum penalty is 15 years imprisonment and an offence of possessing child abuse material, a state offence for which the maximum penalty is 10 years imprisonment. When I sentence him for the second of those matters the offender asks that I take into account a matter on a Form1, an additional offence of possessing child abuse material. The charge on the indictment refers to the child abuse material stored on the various hard drives while the charge on the Form 1 relates to the child sex doll. 7. The Crown sought to tender what it said was a representative sample of the images and videos. The Crown suggested that the purpose of the tender was to allow the sentencing judge, if he or she wished, to view a sample. The videos on the sample disc went for a total of 1 hour 12 minutes and 6 seconds. 8. It is inappropriate for any party to tender material to a judge on sentence on the basis that the sentencing judge may wish to view it. If material is tendered it is incumbent on the judge to view it. The judge doesn't get a choice. 9. I rejected the tender of the sample images and videos. In my view no judge should be forced to watch 1 hour 12 minutes and 6 seconds of child abuse material. In my view it is a completely unnecessary to so do. In my view there is a real risk that doing so will engender feelings of disgust and an emotional reaction to offending which is inappropriate on the part of a sentencing judge. I know that the offender had 3 videos in which children were subject to sadism, humiliation or bestiality. I know that he had 11 videos showing penetrative sexual activity between children or between children and adults. I don't need to see the 18½ minutes or so that those videos run for to understand the gravity of an offence of possessing such material. In addition, as I have said many times before, part of the harm caused to the children depicted in the videos and images arises from the viewing of such material, and that is the case even in the course of judicial proceedings. 10. The offender is a man of prior good character. At the time of his arrest he was working and character references tendered on his behalf suggested that he was industrious, kind, and helpful. He was born in China and came to Australia in 2006. His parents still live in China. He had what would in Australian terms be regarded as a strict upbringing. He completed a Bachelor of Business degree in China and came to Australia in 2006 to complete a Masters in Information Technology and then a Masters in Computing in 2010. 11. After his arrest he began seeing a psychologist, a Ms Tracey Cahn who describes herself as a doctor with a Bachelor of Arts and a Masters of Psychology. She has been treating the offender since the 15th of November 2015. She has diagnosed him as suffering from obsessive compulsive personality disorder and a major depressive disorder recurrent. She provided reports and gave oral evidence in which she said amongst other matters, "I do not see any danger of repeat behaviour of this type" and "the absence of sexual deviance or anti-social behaviour suggest his risk of re-offence is low". 12. There are a number of problems accepting those conclusions by the psychologist. Firstly, as I have already found, the offender had been less than frank about his motivation for committing these offences. Secondly he did not give sworn evidence in the sentence proceedings in which he testified that what he had told the psychologist was the truth. In this regard I note that that the psychologist speaks of social isolation which is contrary to the impression gained in the references tendered on the offender's behalf. 13. Thirdly the psychologist has had limited relevant experience. For example this was the first time she had ever treated someone with respect to child pornography. The psychologist is treating the offender for OCD and depression, not for any form or paraphilia. 14. In such circumstances it cannot be said that the prospects of the offender's rehabilitation are good. There is a need for personal deterrence in this case as well as the obvious need to deter others who may be tempted to act the way the offender has. 15. Even if it were the case that the offender did not obtain sexual gratification from viewing the images and videos and that his possession of them can be explained as part of his obsessive compulsive disorder whereby he likes to collect things, that scarcely effects the gravity of his offending conduct. As has been said time and time again one of the aspects of offences of this type which makes the offences so serious is that children are harmed in the production of this material. There is a demand for it which is satisfied by evil people abusing children in the most awful ways so that images and videos of the kind this offender possessed can be viewed by others. It makes no difference to the children who have been abused, or the people who produce it, whether those who wish to possess such material get a sexual thrill out of it or not. 16. Of course no child was directly harmed by the offender's possession of the child sex doll. But any normalisation of sexual acts committed upon children is capable of increasing the likelihood that children will be abused in that way. 17. Consistent with the offender's early admissions to police the offender pleaded guilty to the offences on the indictment at a relatively early stage, at the completion of committal proceedings in the Local Court. Apparently there was some legal issue as to whether the child sex doll amounted to child abuse material but that should not have in anyway delayed the offender pleading guilty at the earliest opportunity if he had wanted to. In order to reflect the utilitarian value of his plea I will discount the State offence by 20% and in order to reflect his willingness to facilitate the administration of justice I will discount the sentence on the Commonwealth offence by a similar amount. 18. There is a considerable degree of overlap between the 2 offences on the indictment. Almost all child abuse material is now obtained over the internet and so every time a person is found in possession of an image or a video, a State offence, that image or video has been obtained through the utilisation of a carriage service, a Commonwealth offence. However the authorities require that the sentences imposed for such matters not be entirely concurrent. In order to reflect the different aspects of criminality covered by the 2 charges there will be a level of accumulation. 19. In assessing the objective gravity I note that, when compared to many other offenders, this offender possessed relatively few images and videos and that most of them were in the lowest category of seriousness. On the other hand as I have already identified a significant number of children were harmed in the production of the material which the offender possessed and there was a not insignificant number of images and videos in the most serious categories. 20. I should mention at this stage that the person who sold the doll to the offender had been sentenced in the District Court. I was told that he was sentenced for offences relating to the sale of the doll as well as child pornography he had in his possession. But no question of parity arises, at least insofar as the offences on this offender's indictment are concerned. In any case I know nothing about the seller of the doll apart from what is contained in the fact sheets in this case and from what I was told from the Bar table about his possession of child abuse material. 21. Ms Hall who appears for the offender asked me to pay particular regard to a decision of the Court of Criminal Appeal, Vincenzo Jon Fedele v R [2015] NSWCCA 286 in which the Court allowed an appeal and imposed a sentence of imprisonment which was ordered to be served by means of an Intensive Corrections Order on a person who faced similar charges to that faced by this offender. However the gravity of that offender's conduct was significantly lower – he possessed only 5 videos and 49 "thumbnail" files. In any case, as the Court of Criminal Appeal has said on many occasions a single decision of the Court of Criminal Appeal does little by way of establishing an appropriate range of sentences. What is necessary is for me to assess the appropriate sentences given the maximum penalties, my assessment of the objective gravity of the offender's conduct, his subjective features and the well- known principles concerning sentencing for child pornography matters which have been stated by the Court of Criminal Appeal on many occasions. 22. Not only am I satisfied that a custodial sentence is required, but I am satisfied that nothing less than a full time custodial sentence properly reflects the matters to which I have referred. In any case. The length of the overall sentence I have decided upon is such that no alternatives to full time custody are available, that circumstance arising from the need for a small level of accumulation. 23. For the State offence there are special circumstances relating to the accumulation of sentences, this being the offender's first time in custody, and the psychological illnesses from which he suffers. 24. For the Commonwealth offence I impose a fixed term of imprisonment of one year and 3 months to date from today the 19th of August 2016. That is a fixed term because of the sentence I will now impose on the State offence and represents the time that I would have required the offender to serve in custody had this been the only offence for which I was sentencing the offender. For the offence of possessing child abuse material, the State offence, taking into account the Form 1, I impose a sentence of imprisonment consisting of a non-parole period of 12 months and head sentence of 2 years to commence on the 19th of November 2016. Thus the overall sentence consists of a non-parole period of one year and 3 months which will expire on the 18th of November 2017 and a head sentence of 2 years and 3 months. The offender is to be released to parole at the expiration of his non-parole period. ********** Amendments 03 February 2017 - Typographic error. Additional word of "years" removed from paragraph [26] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2017