Director of Public Prosecutions (Cth) v Lou
[2019] VCC 1399
•26 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 19-00667
CR 19-00668
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| XINWEI LOU |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2019 | |
DATE OF SENTENCE: | 26 August 2019 | |
CASE MAY BE CITED AS: | DPP (Cth) v Lou | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1399 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty – one charge of import tier 2 goods – one charge of knowingly possess child abuse material – no prior criminal history – importation of two silicon sex dolls with childlike features – the sex dolls were for personal use – a total of 5,162 child abuse material files located on two devices – paid for child abuse material using a cryptocurrency – offender between 19 and 20 years of age at time of offending – youth a mitigatory factor – lack of insight and victim empathy – moderate risk of recidivism.
Legislation Cited: Customs Act 1901 (Cth), Crimes Act 1958, Crimes Act 1914 (Cth), Sentencing Act 1991, Sex Offenders Registration Act 2004.
Cases Cited: The Queen v Miao [2016] NSWDC 181, Ponniah v The Queen [2011] WASCA 105, DPP (Cth) v D’Alessandro (2010) 26 VR 477, Azzopardi v The Queen (2011) 35 VR 43, Boulton v The Queen (2014) 46 VR 308, Atanackovic v The Queen [2015] VSCA 136, R v Mills [1998] 4 VR 235, R v Wyley [2009] VSCA 17.
Sentence: Charge 1 – 4 months imprisonment, to be released forthwith on a recognisance of $2,000.00 and to be of good behaviour for a period of 4 years. Charge 2 – Community Correction Order for a period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms A Carlander-Munro | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr I Hill QC Ms R Avis | Galbally & O’Bryan |
HIS HONOUR:
Introduction
Xinwei Lou, you have pleaded guilty to one charge of import tier 2 goods contrary to s 233BAB(5) of the Customs Act 1901 (Cth), which carries a maximum penalty of 10 years imprisonment (Charge 1) and one charge of knowingly possess child abuse material contrary to s 51G of the Crimes Act 1958 which also carries a maximum penalty of 10 years imprisonment (Charge 2).
You have no prior criminal history.
Circumstances of the offences
A prosecution opening was tendered on the plea which may be summarised as follows:
On 18 June 2018, an air cargo consignment from China was intercepted by the Australian Border Force (ABF). The package was addressed to ‘Tom Lou’ at your home address, from a consignee in China.
The package was found to contain a silicon sex doll with childlike features (the second doll). The doll was of female appearance, approximately one metre tall with undeveloped breasts and hips. It had open holes in the genital and anal regions. The clothing accompanying the doll was also childlike.
On 26 July 2018, ABF officers executed a search warrant at your home address where they located a further silicone sex doll with childlike features (the first doll) and a laptop computer which was found to contain child abuse material.
You made a number of admissions in a field interview conducted on the same day which may be summarised as follows:
·You go by the anglicised name ‘Tom’;
·You purchased the dolls from a Chinese website called ‘Taobao’;
·You paid 9000 yuan for the second doll and 7000 yuan for the first;
·You had used the first doll for sex before;
·You agreed that they look like children;
·You stated ‘It’s a crime. I know that child doll is crime’ and that you were worried that the police were going to come after the first doll arrived;
·You said that the second doll looks 16 or 17 and the first doll looks 15 or 14;
·You bought children’s underwear for the doll and agreed that it makes it look more childlike;
·You said you had another sex doll with big breasts, which you said you always use because it looks normal;
·You ordered the second doll because ‘the first one is too strange’;
·You spoke to your brother about the sex dolls, and your brother told you the first doll was too young; and
·You wanted to destroy it, but didn’t know how because you couldn’t just throw it in the bin.
At the execution of the search warrant at your address on 26 July 2018, you also made admissions in relation to child abuse material summarised as follows:
·You had searched the deep web for children in sexual poses or naked;
·You downloaded and watched a video of a girl approximately 10 years of age sucking on the penis of a male child of approximately the same age;
·You had watched approximately ‘one to two minutes’;
·You downloaded a ‘bunch of videos’ in a folder.
·You paid in bitcoin to access the child abuse material, purchasing it in 2016;
·You only watched a few minutes of it because ‘it’s disgusting’; and
·You didn’t share the videos with anyone else.
Your laptop was seized and an analysis of the content was conducted. Four separate hard drives were located within the laptop. Child abuse material was located on two out of the four hard drives. A total of 4,568 child abuse material files were located on both hard drives.
Your iPhone was also analysed and a total of 594 child abuse material files were located which had been downloaded onto your phone.
Thus, a total of 5,162 child abuse material files were located on the two devices, categorised as follows in accordance with the Australian National Victim Image Library categorisation model or ANVIL:
Table 1: Category Images Videos 1: No Sexual Activity 1,336 6 2: Solo/Sex Acts b/n Child 870 14 3: Adult Non-penetrative 172 2 4: Child/Adult penetrative 381 79 5: Sadism/Bestiality/Child Abuse 53 6 6: Animated or Virtual 2,214 29 5,026 136
The prosecution summary tendered on the plea provides descriptions of examples from each category and as such, I will not reproduce those examples in detail in these sentencing reasons. However I note that in the more serious categories, 381 images and 79 videos are category 4 depicting adult penetration of very young children, and 53 images and 29 videos are category 5 depicting physical child abuse together with adult penetrative sexual activity.
Nature and gravity of offending
Charge 1 is representative of your importation of the two sex dolls with childlike features which by definition in the Customs Act 1901 are items of child pornography. The charge under s 233BAB of the Customs Act is a general charge prohibiting the importation of a wide variety of items including weapons, human tissue and items of child pornography. An item of child pornography is defined as a document or other goods. Subsection (3)(b) defines an item of child pornography as ‘other goods’ if the dominant characteristic is the depiction, for a sexual purpose of a sexual organ or anal region of a person who appears to be under 18 years in a way that reasonable persons would regard as being offensive.
In this instance there is no evidence that you sought to sell or distribute the dolls but rather they were for your own use. The first doll was only used in your home by you and the second was intended for the same purpose and thus the offence was confined. The charge is an importing charge and as such your admitted use of the doll for sex and the buying of clothes for the doll does not form part of the charge. In that regard I respectfully adopt the sentencing remarks of His Honour Judge Berman of the District Court of New South Wales in The Queen v Miao[1] a case involving similar charges where, in relation to the purchase of a child sex doll His Honour said:
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 on 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 causes to the victims of it.
[1] [2016] NSWDC 181 at [1].
The charge may also be compared with importing hard copy child abuse material or such material contained on a laptop computer. For example, the prosecution provided the decision of Ponniah v The Queen[2] which was a case involving a s 233BAB charge where the appellant arrived in Australia on a flight from Singapore in possession of a laptop and hard drive. When analysed, the laptop and hard drive contained a number of files of child pornography which in my view represents a more serious example of this charge where there is clear evidence of harm to children.
[2] [2011] WASCA 105.
As such, while it may invoke feelings of disgust, in all the circumstances I do not view the objective seriousness of charge 1 as being at the high end.
Charge 2 in my view represents a serious example of possession of child abuse material. The number of files alone and in particular the large number of files in the more serious categories elevates the seriousness of the charge. Of the video files approximately 58% were in category 4, an example of which provided in the prosecution summary depicts a four year old girl being penetrated in her vagina by an adult male with his penis followed by penetration of her mouth and anus. An example of one of the category 5 videos depicts an eight year old girl naked and bound to a bed with tape. An adult male is penetrating her vagina with his penis while she is crying in pain. A second girl is lying next to her. The male then drips hot wax on her labia, inserts a dildo into her vagina and a second into her anus again, while she cries in pain.
In assessing the objective seriousness of this charge I have taken into account the matters which have been established on the authorities including relevantly in this instance: the nature and content of the material – including the age of the children and gravity of the sexual activity portrayed; the number of images or items; the fact that the possession was for personal use and the length of the time of the offending.[3] I also take into account in this instance the fact that you paid for the material using a cryptocurrency, in this case bitcoin, thereby contributing to the business of the distribution of child abuse material and thus the exploitation of children.
[3]DPP (Cth) v D’Alessandro (2010) 26 VR 477 at [21].
Therefore, in my view, in all the circumstances your possession of child abuse material represents a serious example of this offence.
Personal circumstances
You are 21 years of age and you were between 19 and 20 during the time of the offending represented by charges one and two.
You were born in Shanghai and you have a twin brother. Your father is the CEO of a large construction company in Shanghai and as such you have enjoyed considerable prosperity as a result of your father’s income. Your mother has largely been responsible for the bulk of child rearing and has not worked outside the home. You had a supportive upbringing although it is said that your mother was fairly strict with you and discipline included harsh physical punishment at times. You suffered no medical or psychological issues as you grew up and have not suffered any history of alcohol or drug abuse, mental illness or family violence.
You attended local primary and secondary school in Shanghai. You are fluent in Mandarin and although you have studied in Australia for some years, your psychologist states that you have functional proficiency in spoken English but easily confused by complexity in both written and spoken material.
You came to Australia on a student Visa in 2014 and attended Brighton Grammar School together with your twin brother at the commencement of year 10. You completed your VCE at Brighton grammar in 2016. Upon completion of your VCE your parents purchased a property in Toorak in which you continue to reside with your brother and cousin.
You struggled academically and ultimately did not obtain a score that enabled you to commence your study of choice at Monash University which was to be a Bachelor of Engineering. As a result you attended Monash College which is an affiliate of Monash University specialising in assisting overseas students to prepare for tertiary study and you ultimately enrolled in a Diploma of Engineering. You had completed two years of that course however discontinued in early 2019 as a result of being charged with these offences.
In March 2018 your twin brother was diagnosed with lymphoma and returned to China for medical treatment. You remained in Australia to continue your studies, returning to China in the holidays in order to be close to your brother. You returned to Australia however when you were charged with these offences you were prevented from leaving the country.
You have not been engaged in paid work however after discontinuing your studies you have worked as an intern with a friend of your father’s while awaiting the outcome of these matters.
A report was prepared by Patrick Newton, clinical and forensic psychologist, and tendered on the plea. A further report was prepared by Geoffrey Burrows, forensic counsellor, in relation to your treatment on the Sex Offenders Treatment Program which was also tendered on the plea.
Mr Newton outlines the fact that you have never been the victim of any form of sexual abuse as young child nor have you experienced any sexual violence or been the focus of unwanted sexual attention or sexual harassment. He notes that you identify as exclusively heterosexual in orientation however you have had little opportunity to interact with women your own age and that you had not socialised with female peers in China. You have never had a relationship and never engaged in physical intimacy or sexual relations with a female person.
You stated to Mr Newton that you never had access to pornography in China because it is blocked by the government. After your arrival in Australia in 2014, friends introduced you to online pornography which you began to access using your telephone and computer. You stated that as your familiarity with pornography grew you would seek increasingly diverse material. You freely acknowledge that you searched for material on the ‘dark web’ and that in that context you found sites where you could access extremely deviant and illegal material including child exploitation material. You subsequently paid to download that material onto your computer.
Mr Newton identified a number of significant issues in regard to your sexual adjustment. He states that your understanding of the normative sexual development of children and young people was defective. You were unclear about when and how children develop the physical, emotional and psychological readiness for sexual activity nor the basis for the laws regarding age of consent in relation to sexual contact. As such, you had considerable difficulty appreciating that the individuals who are depicted in the child exploitation material have in fact been abused and your expression of empathy was limited. You stated to Mr Newton:
Even though I now know what happens in the [making of the] video, they [the children] are still too far away from me. I don’t know them; they mean nothing to me. I understand what happened, but it doesn’t affect me deeply.
You said to Mr Newton that your choice of purchasing a childlike sex doll did not indicate any interest by you in children however you are unable to explain why you subsequently purchased and dressed the doll in children’s underwear that emphasised its childlike appearance. In this context Mr Newton was of the view that as you had utilised the doll on several occasions, he considered it highly likely that you engaged in a range of deviant fantasies regarding underage sexual partners. While Mr Newton stated that it was not clear that you would meet the criteria for a paedophilic disorder, it is clear that there are significant problematic areas in your sexual and social adjustment.
Mr Newton reviewed your treatment with Mr Burrows in relation to the Sex Offenders Treatment Program and concluded that notwithstanding having participated in more than 20 consultations, you have made only limited progress. To that end I note that Mr Burrows too found that you had difficulty feeling victim empathy and that you believed that you were not contributing any harm by downloading child abuse material because it already existed and that children who appeared happy in child abuse material are not being harmed. Thus he is of the view that further treatment is clearly required to enhance your insight and victim empathy.
Finally, Mr Newton conducted psychometric testing in relation to sexual recidivism and together with his clinical assessment, he formed the view that you pose a moderate risk of recidivism to sexual offending.
Also tendered on the plea were a number of references which I have taken into account. The common theme in the references is that you are viewed by your family and friends as an immature young man and in the context of this offending, the common view is that you were curiously exploring your sexuality and naive as to the seriousness of it. In your brothers letter he too states that he was unaware of the seriousness and prohibited nature of your conduct until you were charged.
The letters however also reflect that you are now fully aware of the nature of your conduct and have expressed remorse. The letters also provide further detail as to the support you continue to enjoy from your family and friends.
Sentencing considerations
As Charge 1 is a Commonwealth charge, I am required to take into account a number of matters pursuant to section 16A of the Crimes Act 1914 (Cth). Ms Carlander who appeared on behalf of the Commonwealth Director of Public Prosecutions, highlighted a number of the matters in section 16A(2) that must be given weight and I have taken those matters into account. In cases such as this it was submitted, and I agree, that general deterrence must be the paramount sentencing consideration.
Mr Hill who appeared with Ms Avis on your behalf highlighted a number of matters to be given weight in mitigation. First and foremost was your plea of guilty which was entered at the committal mention. Further, you made admissions in relation to both charges in a field interview conducted on the day the Australian Border Force officers executed a warrant at your house. In the circumstances your plea has been entered at the earliest opportunity. Your plea demonstrates your acceptance of responsibility, has saved the time and expense of a trial and has therefore facilitated the course of justice.
As to any demonstration of genuine remorse, I acknowledge that you made some expression of remorse to Mr Newton where you stated:
I am very sorry for what I have done. I know I did the wrong thing. I thought it hurt no-one because it was online, but now I know that the problem is that it would cause more tragedy and hurt to children.
However, for the reasons already noted in relation to your appreciation of victim empathy and your deficiencies in insight, in my view you have some distance to go in terms of treatment in order for you to develop true remorse.
Your youth is a very relevant sentencing consideration. You are currently 21 and were between 19 and 20 during the time of the offences. It is also apparent from the remarks of Mr Newton and Mr Burrows that you also are very immature for your age and level of education. Your immaturity has also been accentuated by cultural dislocation having been isolated in Australia from a relatively young age.
As such reliance was placed on the well-known principles in relation to young offenders that rehabilitation should remain the primary sentencing consideration. While I accept the well-settled principles in relation to young offenders and that they do have application in your case, I must weigh those considerations with the seriousness of the offending in this instance.
In Azzopardi v The Queen[4], having reviewed the established authorities in relation to young offenders, Redlich JA said at paragraph 44:
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.
[4] (2011) 35 VR 43.
I also note that Mr Newton is of the view that your youth and immaturity together with the type of offences to which you have pleaded guilty would make you a comparatively vulnerable prisoner.
Specific deterrence in my view does have some role to play given the conclusions of Mr Newton that there is a risk of further online offending if you are faced with a time of heightened stress or loneliness. That said, you are young and do not have any prior history. Further, I accept that the criminal process has already had a significant impact on you and you now appreciate the seriousness of your conduct.
As to your prospects of rehabilitation, if you are able to complete further counselling and gain greater insight into the impact your offending has on vulnerable children, in my view your prospects of rehabilitation may be assessed as very good. You have a supportive well-resourced family and undoubtedly you will gain further insight as you naturally mature.
Mr Hill submitted that in all the circumstances a term of imprisonment on Charge 1 with immediate release under a recognizance release order and a community correction order in relation to Charge 2 is able to meet the relevant sentencing considerations while allowing you to remain in the community to continue your rehabilitation. As such I had you assessed in order to consider that submission.
The community correction order assessment reports you as being at a low risk of reoffending. However the assessor formed a similar view to that of Mr Newton stating that you minimised your conduct. The assessor also endorsed the views of Mr Newton as to the need for you develop victim empathy.
Ms Carlander submitted that the only appropriate sentence is a term of imprisonment in relation to both offences in order to reflect the need for general deterrence, denunciation, specific deterrence and protection of the community.
Charges 1 and 2 are separate and distinct offences. Further, as was discussed at a further plea hearing of this matter, it is common ground that in all the circumstances Charge 2 represents much more serious offending than Charge 1. That said, Charge 1 is a Commonwealth charge and Charge 2 is a State charge. As such the principles in Boulton v The Queen[5] are only able to be applied in relation to the State charge.[6]
[5] (2014) 46 VR 308.
[6]Atanackovic v The Queen [2015] VSCA 136.
The legislative change in relation to community correction orders that ultimately led to the guideline judgement in Boulton in the circumstances warrants revisiting.
As was made clear in Boulton, with reference to the Second Reading speech, the Court noted that it was contemplated that community correction orders would be able to be used in place of sentences which were, strictly speaking, sentences of imprisonment, such as suspended sentences and intensive correction orders[7]. As such the availability of the community correction orders ‘dramatically change[d] the sentencing landscape’ by giving Victorian sentencing courts a disposition which enabled all the purposes of imprisonment to be served simultaneously in preference to prison.[8]
[7]Boulton at [57].
[8] Ibid at [113]. See also Atanackovic at [18].
Therefore while the equivalent of a suspended sentence remains in Commonwealth sentencing via the recognizance release order, sentencing in this State has moved on and has provided sentencing courts with an alternative flexible approach to imprisonment in appropriate circumstances.
The often quoted passage in Boulton still has currency and also warrants restating:
… a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[9]
[9] Ibid at [131].
Further, when the above comments are considered in the context of a young offender they apply with even greater force as was also noted by the Court in Boulton. After reviewing the well-known authorities in relation to young offenders such as The Queen v Mills, The Queen v Wyley and Azzopardi v The Queen, The Court stated:
As discussed earlier, the CCO can be used to rehabilitate and punish simultaneously. This significantly diminishes the conflict between sentencing purposes, particularly acute in relation to young offenders. No longer will the court be placed in the position of having to give less weight to denunciation, or specific or general deterrence, in order to promote the young offender’s rehabilitation. Rather, the court will be able to fashion a CCO which adequately achieves all of those purposes.
55.Finally, as was reiterated in Atanackovic v The Queen[10] when summarising the Boulton principles:
Imprisonment has a narrow punitive purpose and effect whereas a CCO has a multi-purpose character, incorporating both punitive and rehabilitative purposes. As such, a CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and those of the offender.[11]
[10] [2015] VSCA 136.
[11] Ibid at [97].
Therefore in my view in relation to Charge 1, the appropriate sentence is a term of imprisonment to be served by way of a recognizance release order which will involve immediate release. In relation to Charge 2, in my view the relevant sentencing considerations are able to be fully met by the imposition of a community correction order while still recognising the seriousness of the offending and giving full force to the Boulton principles that can only have application in relation to that charge.
Sentence
Mr Lou please stand.
Xinwei Lou, on Charge 1, import tier 2 goods, you will be convicted and sentenced to 4 months imprisonment.
Pursuant to s20(1)(b) of the Crimes Act 1914, I direct that you be released forthwith upon giving a recognizance in the amount of $3000 and to be of good behaviour for a period of 3 years. Further, that as a condition of the recognizance release order you must complete the Sex Offender Treatment Program.
On Charge 2, knowingly possess child abuse material, you will be convicted and placed on a community correction order for a period of 3 years. The community correction order will have punitive and therapeutic components and it will be onerous.
You will be required to complete 300 hours of community work and engage in programs to further address your offending, the intention being that you are able to continue the treatment that you have commenced on the Sex Offenders Treatment Program. You will also be subject to supervision.
Pursuant to s 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation condition may be credited as hours of unpaid community work.
Further, the offences to which you have pleaded guilty are Class 2 offences pursuant to the Sex Offenders Registration Act 2004 and are registrable offences. You will therefore be required to comply with reporting obligations for a period of 15 years.
Pursuant to s 6AAA of the Sentencing Act 1991, while recognising it is a difficult exercise to make such a statement in the circumstances presented here, if not for your plea of guilty I would heave sentenced you to a period of imprisonment of 2 years imprisonment to be released after serving a period of 12 months.
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