CDirector of Public Prosecutions v Le Gay Brereton

[2025] NSWDC 46

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

CDPP v LE GAY BRERETON [2025] NSWDC 46

Hearing dates:

7 March 2025

Date of orders:

7 March 2025

Decision date:

07 March 2025

Jurisdiction:

Criminal

Before:

Everson SC, DCJ

Decision:

1.    The offender Michael Patrick LE GAY BRERETON is convicted.

2.    I impose a term of imprisonment of 2 years to date from 5 September 2024 and expiring on 4 September 2026.

3.    The offender is to be released forthwith upon entering into a recognisance in the sum of $1,000 to be of good behaviour for 1 year and 6 months. The further conditions of the recognisance are:

      i. the offender accepts supervision by an officer of Community Corrections;

      ii.  the offender obeys all reasonable directions from Community Corrections;

     iii. the offender is to undertake such treatment or rehabilitation program as reasonably directed by Community Corrections.

4.    If the offender fails to comply with the conditions of the recognisance release order, further action may be taken against him. This may require the offender to return to Court.

5.    I order the forfeiture of the child-like sex doll that was tendered in evidence by the Crown at trial.

6.    I refuse the prosecutor’s application for an order under 3D of the Child Protection (Offenders Registration) Act 2000 (NSW). The enquiry regarding the risk the offender poses to the lives or sexual safety of one or more children, or of children generally under s 3D(2) is constrained by s 3AA. Generally, a conclusion about the existence of a risk should be based on something stronger than a police officer’s or prosecutor’s speculation or suspicion: O’Neill v Commissioner of Police [2020] NSWSC 1805 at [12]. In the present case, there is no evidence, direct or indirect, that satisfied this Court that the offender poses a risk to the lives or sexual safety of one or more children, or of children generally.

Legislation Cited:

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 Cited:

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

Category:

Sentence

Parties:

Rex (Cth) (Crown)
Michael Patrick LE GAY BRERETON (Offender)

Representation:

Counsel:
Mr Jordan (for the Crown)
Mr Khan (for the offender)

Solicitors:
Solicitor for Public Prosecutions (Cth) for the Crown;
Aquila Lawyers for the offender.

File Number(s):

2023/00183040

JUDGMENT

BACKGROUND

1. On 12 February 2025, Michael Patrick Le Gay Brereton was called to trial by the Crown in right of the Commonwealth of Australia. An indictment was presented accusing him of committing a single Federal offence, contrary to s 273A of the Commonwealth Criminal Code, in the following terms:

On or about 7 June 2023 at Kings Park in the State of NSW [Michael Patrick Le Gay Brereton] did possess a doll which resembled a person who is or appears to be under 18 years of age and a reasonable person would consider it likely that the doll is intended to be used by a person to simulate sexual intercourse.

2. Upon arraignment, the accused pleaded not guilty. His trial by jury on that charge proceeded for three days. On 14 February 2025, the jury found Mr BRERETON guilty as charged.

THE OFFENCE

3. It is well settled that a sentencing judge may not take facts into account in a way that is adverse to the interests of an offender unless those facts have been established beyond reasonable doubt. On the other hand, matters which are submitted to be in favour of an offender need only to be proved on the balance of probabilities.

4. When sentencing after a trial by jury, it is possible to infer that parts of the evidence must have been accepted by the jury. However, it is impossible to know whether some or all of the jurors accepted all of the evidence relied upon by the prosecution. That observation inevitably follows from the standard judicial direction to a jury that they are entitled to choose between parts of the evidence and that in order to find an accused guilty they must find, beyond reasonable doubt, the essential elements of the charged offence. Although the jury's verdict must be unanimous they need not agree upon the same reasons for their unanimous verdict. Jurors may individually rely upon different parts of the evidence or place a different emphasis upon parts of the evidence. Unless a particular piece of evidence is logically crucial to the prosecution case, they do not have to accept, beyond reasonable doubt, any particular witness, or any particular evidence. These are familiar aspects of the inscrutability of a jury verdict. This can mean that a jury's verdict of guilty may leave a sentencing judge with a difficult task of deciding questions of degree involved in assessing an offender's culpability.

5. Not all disputed issues of fact relevant to an exercise of the sentencing discretion must (or can) be resolved for or against the offender: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at 636 [19]. It is, erroneous to present every question for a sentencing court as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.

6. Informed by these principles I make the following findings of fact consistent with the jury's verdict.

7. The events giving rise to the charge began with a police investigation into a suspected cannabis offence that commenced in January 2022. That police investigation included some surveillance of the accused, as well as a black Audi sedan associated with him and a residential apartment in Seven Hills associated with him and an industrial warehouse unit at unit 32/11 Romford Road in Kings Park also associated with the accused as well.

8. On 6 June 2023 the investigating police obtained search warrants for the Seven Hills and Kings Park premises. The following day, the police attended and searched both premises. At the Kings Park premises the police located the item that was the subject of the charge faced by the accused in the trial, namely a child-like sex doll. The accused was then arrested at the Seven Hills premises and his phone was seized and subsequently subjected to forensic examination.

9. The room which the doll was found in by police was deliberately concealed. On the evidence adduced before this court, I am not satisfied beyond reasonable doubt, that the offender intentionally possessed the doll for any length of time beyond the day it was found in his possession. Similarly, I am unable to conclude how the doll came to be in the offender’s possession. Nor am I able to conclude who clothed the doll or placed the hairclip on its hair. Nor am I able to conclude when or who or how the doll was placed in the precise location where it was found by police on 7 June 2023.

10. The jury’s verdict established that the doll either looked like, seemed like, had a similar appearance to, or had similar qualities in common with, a person who is, or appears to be, under 18 years of age. I am not satisfied that the doll resembled an actual child. Nor am I satisfied that the resemblance is based on an actual child. I am satisfied beyond reasonable doubt that the characteristics of the doll in its entirety resembles a person who is, or appears to be, under 18 years of age. I am not satisfied the doll resembled a pre-pubescent child. The most striking child-like aspects of the doll are its face and the hairclip ribbon with the Disney character printed on it. The doll has developed breasts and female genitalia inconsistent with the appearance of a prepubescent girl.

11. The jury’s verdict established that the offender was reckless that the doll resembled a person who is, or appears to be, under 18 years of age. Accordingly, I am satisfied beyond reasonable doubt that the offender was aware of a substantial risk that the doll resembled a person who is, or appears to be, under 18 years of age. I am not satisfied beyond reasonable doubt that the offender actually knew or positively believed that the doll resembled a person who is, or appears to be, under 18 years of age.

12. The jury’s verdict established that a reasonable person would consider it likely that the doll was intended to be used by a person to simulate sexual intercourse. I am not satisfied beyond reasonable doubt that the offender ever used the doll in that manner.

OBJECTIVE SERIOUSNESS

13. Section 273A was introduced into the Criminal Code 1995 (Cth) in September 2019 by the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth). According to the explanatory memorandum accompanying the introduction of the Bill into Federal Parliament, the new offence was introduced to minimize the likelihood that child-like sex dolls might increase the risk of harm to real children. Criminological research was cited as authority for the propositions that the use of child-like sex dolls may desensitise users from the potential harm that child abuse causes; the sale of child-like sex dolls potentially results in the risk of children being objectified as sexual beings; and child-like sex dolls could be used to groom children for sex.

14. In R v Hutchinson [2018] NSWCCA 152 at [45], the Court provided a revised list of the non-exhaustive list of factors that may be relevant to an assessment of the objective seriousness of offences concerning child abuse material. The earlier stated findings of fact concerning the appearance of the doll and its location also inform the assessment of the objective seriousness of the offending in the present case.

15. At 142 to 143 cm (or 4 foot 8 inches) tall, the doll is certainly not the height of an infant or a child aged under 10 years of age. The doll’s developed breasts, female genitalia and overall appearance is more suggestive of a female child between the ages of 15 and 18 years rather than between 10 and 14 years. That the doll has a vaginal cavity, and a vulva indicates that the doll was intended to be used by a person to simulate sexual intercourse.

16. At the time of seizure, the doll was clothed in what is described as a slip, or shift-type, sleeveless dress. The doll had joggers on and a wig with a hair clip in the hair. It is a ribboned hair clip with the Disney character “Ana” from the animated film Frozen, printed on it. The dress and joggers can be worn by any age of woman. However, the Disney hair clip, while not being exclusively associated with children, it adds to the resemblance of this doll being under the age of 18 because it is more likely to be worn by a child.

17. Whilst the room in which the doll was found in by police was deliberately concealed. However, this matter can be taken as neutral because one can reasonably conclude that the offender may very well have been embarrassed by having such an item in the open, given the stigma that might be associated with possessing a sex doll, regardless of whether he thought it resembled a child or not.

18. The evidence falls short of establishing whether the doll was obtained by the offender and/or whether it was purchased through a commercial marketplace.

19. There is no evidence from which it could be inferred that the accused had any desire to perform sexual acts upon a real child.

20. All things considered, the objective seriousness of the offence is devoid of aggravating factors. Equally, the seriousness of the offence is not mitigated by any objective factors.

THE OFFENDER

21. The Offender was born in 1969 and was 54 years old at the time he committed this offence. He has a history of criminal convictions for offences of larceny, possessing, cultivating and supplying a prohibited drug.

22. The offender spent some 6 months in pre-sentence custody. He been on bail since 8 December 2023, with conditions that included a strict curfew. Whilst that pre-sentence custody was not solely referrable to the index offence, it did result from the prohibited drugs and the child-like sex doll that were both located by the police when they searched the offender's Kings Park warehouse unit on 7 June 2023. I am unable to apportion the weight given to the index offence from the drug offences in the initial decision to refuse bail.

23. Tendered in the offender's case on the hearing of the plea in mitigation, are several letters of support. I have read and considered each of those letters of support. They each paint a picture of the offender as a person of good character who continues to have the support of family and friends.

24. The psychiatrist Dr Ben Teoh, refers to the offender having consulted him for his attention deficit hyperactivity disorder since the beginning of 2017.

Moral Culpability

25. The offender's record of previous convictions indicates that the index offending is an uncharacteristic aberration.

Approach to Sentencing

26. As with all Federal offences, sentencing in accordance with Part 1B of the Crimes Act 1914 (Cth), is required. That approach includes taking into account the matters listed in s 16A(2) that are relevant and known to the Court. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles also apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].

27. I have had regard to the considered submissions of the parties, including the relevance of the particular principles relevant to sentencing offenders who have dealt with child abuse material other that sex-dolls.

28. The Crown submits that that the principles relevant to the sentencing of offences involving child pornography and child abuse material are equally applicable to offending involving the possession of child sex dolls. I have already referred to non-exhaustive list of factors that may be relevant to an assessment of the objective seriousness of offences concerning child abuse material set out in R v Hutchinson [2018] NSWCCA 152 at [45].

29. In the Crown's submission, the first principle relevant to sentencing offenders who have dealt with child abuse material is said to be that unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted. Several decisions of intermediate courts of appeal from Victoria, NSW and Western Australia are cited as authority for that principle. The case of R v Booth [2009] NSWCCA 89 was a successful Crown appeal against the imposition of as good behaviour bond for the possession of multiple images and videos of naked young boys, some aged under the age of 10 years and some engaged in acts of sexual intercourse. The passage cited by the Crown from that case (at [48]) is essentially the statement by Simpson J that her Honour was, "persuaded that the sentence imposed was manifestly inadequate. No penalty other than a term of full time custody is sufficient to meet sentencing needs in this case".

30. The most recent of those cases relied upon by the Crown is CDPP v Garside [2016] VSCA 74, another Crown appeal. At first instance the offender Garside was sentenced to a community corrections order for 4 years for using a carriage service to access child pornography. On appeal, the majority said,

"The respondent's offending here was objectively serious, involving as it did thousands of images, some including infant children and most of it involving close up images of children exposing their genitals. The offending specified in the indictment continued over a protracted period and as the respondent admitted to investigators, the offending was not an isolated period of offending.

"The failure to impose an immediate and substantial period of imprisonment was not in conformity with the prevailing sentencing practice. Courts throughout Australia have emphasised the need for substantial penalties with general deterrence and denunciation being paramount considerations. When regard is had to the nature and circumstances of the offending, a CCO was not, in our opinion, a disposition that was reasonably open."

31. These particular cases involving child abuse material illustrate the point that each such case must be determined on its own facts.

32. R v Garcia [2020] NSWDC 553 is a sentencing decision by Judge Haesler SC. The offender Garcia pleaded guilty and was sentenced to imprisonment for one year and six months with a non-parole period of 6 months. The child-like sex doll in question had been altered by the addition of a crudely fashioned vagina to be used as a masturbation device. The offender Garcia testified on his plea in mitigation that he had used the doll for his private sexual gratification. There was no established link in the evidence that the offender Garcia desired to perform such sexual acts on a real child.

33. I respectfully adopt the observations of Judge Haesler SC:

[20] The clear policy of Parliament to criminalise possession of sexual fantasy dolls intended to be used to simulate sexual intercourse is directed at the objectification of young children. [ … ] fantasised sexual intercourse with children and the possession of an item such as this child-like sex doll, and its use, produces a distorted view of reality in which sex with children is somehow seen as appropriate. The community and the legislature and the Courts and … this offender must understand the wrongness of this type of crime.

[51] … to think and act as if sex with children is somehow a norm perpetuates abuse and criminal attitudes towards children. Our community has made it clear that such acts must be punished.

Consideration

34. The maximum penalty fixed by Parliament is 15 years' imprisonment. It provides authoritative guidance by the Legislature, as to the relative seriousness of the instant offence and other crimes in the criminal calendar. Careful attention to the maximum penalty is further required, because it invites comparison between the particular case before the Court and the worst category of case, as that concept was understood, prior to the High Court's decision in The Queen v Killick [2016] 259 CLR 256.

35. I have had regard to the purposes of sentencing in determining a sentence that is of a severity appropriate in all the circumstances. In so doing, I take into account the need to ensure adequate punishment for the offence and consider the objective seriousness of the offence and the moral culpability of the offender.

36. To my mind, denunciation and general deterrence loom large in the present case. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate. In reaching that conclusion, I have reminded myself of the High Court's consideration of suspended sentences of imprisonment in Dinsdale v R [2000] HCA 54; 202 CLR 321.

37. The family support enjoyed by the offender, his adherence to receiving psychiatric assistance and his compliance with onerous bail conditions for over a year, justifies my conclusion that the offender's prospects for rehabilitation are good. In the long term, the best way to protect the community is to bolster those rehabilitative prospects.

38. The offender is to be sentenced for a defined Commonwealth child sex offence: s.3, Crimes Act 1914 (Cth) Section 20 of the Crimes Act 1914 sets out the available sentencing options. Relevantly, it states in sub-section (1)(b) that where a person is convicted of a Commonwealth child sex offence, the sentencing court may, if it thinks fit, sentence the person to imprisonment but direct that the offender person is released, upon giving security. If the court is satisfied that there are exceptional circumstances, the offender may be released immediately. If the sentencing court is not satisfied that there are exceptional circumstances, the offender may be released after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1).

Orders

1. The offender Michael Patrick LE GAY BRERETON is convicted.

2. I impose a term of imprisonment of 2 years to date from 5 September 2024 and expiring on 4 September 2026.

3. The offender is to be released forthwith upon entering into a recognisance in the sum of $1,000 to be of good behaviour for 1 year and 6 months. The further conditions of the recognisance are:

1. the offender accepts supervision by an officer of Community Corrections;

2. the offender obeys all reasonable directions from Community Corrections;

3. the offender is to undertake such treatment or rehabilitation program as reasonably directed by Community Corrections.

4. If the offender fails to comply with the conditions of the recognisance release order, further action may be taken against him. This may require the offender to return to Court.

5. I order the forfeiture of the child-like sex doll that was tendered in evidence by the Crown at trial.

6. I refuse the prosecutor's application for an order under s 3D of the Child Protection (Offenders Registration) Act 2000 (NSW). The enquiry regarding the risk the offender poses to the lives or sexual safety of one or more children, or of children generally under s 3D(2) is constrained by s 3AA. Generally, a conclusion about the existence of a risk should be based on something stronger than a police officer's or prosecutor's speculation or suspicion: O'Neill v Commissioner of Police [2020] NSWSC 1805 at [12]. In the present case, there is no evidence, direct or indirect, that satisfied this Court that the offender poses a risk to the lives or sexual safety of one or more children, or of children generally.

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Amendments

23 April 2025 - Amend error in case title.

Decision last updated: 23 April 2025