Director of Public Prosecutions (Cth) v Wang
[2024] VCC 1988
•9 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-24-01071
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HONGYUN WANG |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 October 2024, 26 November 2024 | |
DATE OF SENTENCE: | 9 December 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Wang | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1988 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentence
Catchwords: Guilty plea – import tier 2 goods – offending constituted by three separate importations of child abuse material
Legislation Cited: Customs Act 1901 (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:The Queen v Furber [2008] WASCA 233; DPP (Cth) and DPP v Garside [2016] VSCA 74; R v De Leeuw [2015] NSWCCA 183; R v Edwards [2019] QCA 15; R v Lee [2013] WASCA 216; Phinthong v R [2011] WASCA 192; Ponniah v The Queen [2011] WASCA 105; R v MB [2019] NSWDC 992; R v Cruz [2010] QCA 90
Sentence: Total effective sentence of sixteen months imprisonment, to be released on a Recognisance Release Order after serving four months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G. McMaster | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Gullaci SC | Paul Vale Criminal Law |
HER HONOUR:
1Hongyun Wang, you have pleaded guilty to one charge of importing tier 2 goods contrary to sub-section 233BAB(5) of the Customs Act 1901 (Cth), the maximum penalty for which is 10 years’ imprisonment.
2The offence to which you have pleaded guilty relates to three separate occasions you imported child abuse material into Australia on 27 August 2023, 12 September 2023 and 8 December 2023. The importation of child abuse material is prohibited under the Customs Act 1901, which is aimed at protecting children from harm and exploitation.[1]
[1]The Queen v Furber [2008] WASCA 233, at [41]
3You were born in Shanghai, China, in November 1988 and arrived in Australia in May 2017 under a skilled worker visa. You were between 34 and 35 years of age at the time of this offending and have no prior criminal record. In Australia, you are also known as Isaac Wang.
Circumstances of offending
4The circumstances of your offending are detailed in the amended summary of prosecution opening for plea dated 1 October 2024[2] which is the agreed basis upon which you are to be sentenced. I will summarise these circumstances here.
[2] Exhibit A - Summary of Prosecution Opening for Plea dated 1 October 2024
27 August 2023 – Importation of DVDs in consignment one
5On 27 August 2023, an international mail consignment, addressed to ‘Isaac Wang’ at your residential address, was examined by customs officers. The consignment had been sent from a company called ‘Mandarake’, a Japanese retail business selling a range of products, including anime and manga related items, CDs and DVDs.
6The consignment comprised two DVDs, which were inspected by customs officers and identified as child abuse material from their covers.
7The two DVDs were then seized and were subsequently analysed by investigators on 26 October 2023 and classified in accordance with the Australian Child Abuse Categorisation Schema.
8The first DVD comprised 11 videos of child abuse material, of which one was classified as category 1 child abuse material. This was a 10 minute video, depicting a young female aged between 11-12 engaged in sexual acts with another female aged between 12-14, including simulating oral sex on a penis shaped sex toy.
9The remaining ten videos on the first DVD were classified as category 2 child abuse material. A representative item of the category 2 material was a 7-minute video depicting a pre-pubescent female, approximately 11-12 years old, posing in a sexually provocative manner, wearing a G-string.
10The second DVD contained three videos each classified as category 1 child abuse material, a representative description of which included a video running for approximately 33 minutes of a young female, aged between 10-11, engaged in sexual activity with an adult male, including oral and other penetrative sex.
8 December 2023 – Importation of Apple iPad Pro
11On 8 December 2023, you returned from overseas to Melbourne International Airport, having flown on a China Eastern airline. During luggage inspection, you produced an iPad Pro from your backpack. At the request of a customs officer, you provided the password to this device. The contents of the iPad were then reviewed and found to contain child abuse material. You told the officers that you had no knowledge of the material on the iPad, saying it had not been used in a ‘long time’. On your incoming passenger card you had declared that you were not bringing any illegal pornography into Australia.
12On 22 January 2023, investigators examined the contents of the iPad, which was found to contain 805 unique items of category 2 child abuse material. The material located on the iPad was predominantly depictions of children in animated form, in the style of ‘Japanese Hentai’[3]. Of the 805 items, 139 images depicted actual children.
[3] Hentai is a genre of Japanese manga and anime characterised by overtly sexualised characters and sexually explicit images and/or videos.
13A representative sample of the Japanese Hentai-styled images depicted two naked females, aged between 10-11, performing oral sex on an adult male. The image shows the male ejaculating on the faces of the children in animated form.
14A representative item of the 139 images on the device depicting actual children was of a young girl, aged between 9-10, wearing lingerie and fishnet stockings. In the series, the child is seen in various outfits in sexually provocative poses.
11 January 2024 – Execution of Search Warrant – Yousei Complete DVD
15On 11 January 2024, officers executed a search warrant at your residential address. During the search, officers seized a white gaming PC and a DVD labelled ‘Yousei Complete’. The DVD was suspected to contain child abuse material and was seized.
16On the PC, officers located emails from the online website of ‘Mandarake’, including invoices, payments and shipping notices for the DVDs located in the first consignment and for the DVD seized during the search. Investigators also located a spreadsheet created by you, that listed the purchases, tracking ID and currency conversions from the website. Based on this information, officers were able to identify that the ‘Yousei Complete’ DVD was imported by you on 12 September 2023.
17On 24 January 2024, the contents of the Yousei Complete DVD were examined by investigators and found to contain 22 different scenes of category 2 child abuse material. The video on the DVD ran for approximately 140 minutes.
18A representative description of the scenes included a young female, aged between 11-12, in a bathroom dressed in leopard print lingerie, wearing a diamond choker necklace and makeup, dancing in a sexualised manner. While dancing, the child is seen removing her clothing and striking sexually provocative poses while partially naked. The child’s genital area is pixilated, and the camera is focused on her chest and buttocks.
19A further video depicted a female, aged approximately 14 years old, engaged in oral sex with an adult male.
Field interview on 11 January 2024
20In a recorded field interview with officers on 11 January 2024, you admitted that you had control of the Gmail account that received emails from Mandarake. You denied having purchased the DVDs and said you believed them to contain ‘cosplay’ material. You admitted that you had previously downloaded Hentai material from online pornographic websites in the 2000s. You told the officers that you look at the material but do not promote or publish it. You said you did not understand that ‘cartoons’ could be considered child abuse material when they did not depict real people.
Personal circumstances
21I turn now to your personal circumstances, much of which I have derived from the psychological report of Ms Gina Cidoni dated 15 September 2024[4].
[4] Exhibit 1 – Psychological report of Ms Gina Cidoni dated 15 September 2024 (‘Cidoni report’).
22You were born and raised in Shanghai, China. Until the age 12, you were mainly raised by your maternal grandparents, and had limited interaction with your parents during your early years. Your parents divorced when you were 12, and you moved in to live with your father. Your father drank heavily, and worked as a sole trader, and your relationship was a distant one. You told Ms Cidoni that your parents were often away or working as you grew up, stating that, from your perspective, 'my parents didn’t know how to be parents; they didn’t spend time with me at all or accompany me anywhere'. You report being physically disciplined at times, resulting in bruising.
23You completed primary and secondary school in Shanghai but had poor concentration which you attribute to a lack of attention from your parents. You had no behavioural problems at school.
24At the age of 19, you left your father’s home in Shanghai to join the army. You served in the army for five years, but experienced bullying, which you attribute to the fact you were from Shanghai. You drank heavily during this period, and Ms Cidoni says your experience in the army caused you ‘significant mental trauma’. At the age of 25, you left the army and then worked in an administrative role for the local council in Shanghai for four years, living in your own apartment.
25You met your wife 14 years ago and have been married for eight years. You lived together in Shanghai until 2014 when your wife moved to Australia to study. Your father also migrated to Australia in 2015 and lives in Melbourne. Although your father no longer drinks heavily, he suffers from poor physical health.
26Your mother remarried about ten years ago, and you do not get along with her new husband. You do not have a close relationship with your mother.
27You joined your wife in Australia in May 2017 and remain here under a skilled worker visa. Your wife works as a pre-school teacher working 30 hours a week. You have a 21-month-old daughter who, despite being underweight at birth, is now healthy and developing without any issues. In Australia, you have worked in warehouses, ceasing work in February 2022 to assist you wife during her pregnancy. During this period, your wife’s parents also came to Australia to assist, but have since returned to China. Your returned to warehouse work in February 2024, only ceasing work recently due to these proceedings.
28You told Ms Cidoni that you felt anxious and depressed from a young age, but that your anxiety has intensified as a result of these criminal charges, resulting in mild suicidal thoughts. At your own initiative, you sought treatment from psychologist, Mr Xie, in January 2024 in relation to your use of child abuse material, attending a total of 17 sessions with him. In his report dated 17 September 2024[5], Mr Xie states that you met the diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood, but that since May 2024, those symptoms have resolved.
[5] Exhibit 2 - Report of Mr Kefu Xie dated 17 September 2024.
29Ms Cidoni confirmed this diagnosis but considers that your depressive symptoms and low mood are attributable to your current legal situation, rather than a chronic form of depression. Although you have symptoms indicative of post-traumatic stress disorder arising from your childhood experiences, Ms Cidoni ultimately concludes that these are not severe enough to warrant a diagnosis of PTSD. No reliance is placed on the principles enunciated in Verdins in mitigation of your sentence or to reduce your moral culpability for the offending conduct.
30As to your offending, in her report dated 15 September 2024, Ms Cidoni states as follows:
‘Mr Wang’s offending behaviour may be partly explained by his emotional and psychological background. His tendency towards isolation, difficulties forming close relationships, and avoidance of social interactions, likely make him more vulnerable to seeking solitary coping mechanisms, such as viewing pornography…The content, though legally problematic, likely provided a sense of arousal, offering both distraction and temporary relief from his emotional struggles. Cultural and legal misunderstandings also played a role in his actions.’[6]
[6] Cidoni report, at [58]
Matters to which the court must have regard (s16A)
31In sentencing you for these offences, I must have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth) ('the Act'). In particular, I must consider each of the non-exhaustive factors set out in s16A(2) of the Act as far as they are relevant and known to the court.
Nature and circumstances of the offence (s16A(2)(a))
32I turn first to the nature and circumstances of your offending.
33Offending involving the importation of child abuse material is inherently serious, ordinarily requiring the imposition of a sentence of immediate imprisonment. This is particularly the case where the child abuse material relates to images of actual children. In such cases, it could not be said that these are victimless crimes. An offender’s action in importing such material helps fuel the demand that drives the market in this child abuse material. In that way, those who import the child abuse material play a role in the corruption and exploitation of the real children involved in the creation of these depraved images and videos.
34In assessing the objective gravity of your offending in importing child abuse material, I have had regard to the often-cited criteria identified by the authorities[7], including:
·The nature and content of the child abuse material, including the age of the children and the gravity of the sexual activity depicted;
·The extent of any cruelty or physical harm to the children in the material;
·The number of items, videos and images in the offender’s possession;
·Whether the material was intended to be sold or further distributed;
·The degree of planning, organisation, sophistication or deception used to acquire, store, disseminate or transmit the material;
·Whether the offender gave or received any payment or benefit in the offending; and
·The length of time over which the offending occurred.
[7] Restated in DPP (Cth) and DPP v Garside [2016] VSCA 74, citing R v De Leeuw [2015] NSWCCA 183
35Having regard to these criteria, there are a number of features that are relevant to my assessment of the gravity of your offending.
36Firstly, although you are charged with one offence of importing the child abuse material and the one maximum penalty applies, the charge reflects three separate importations of child abuse material, over a period of three and a half months. This was not isolated offending and the sentence I impose must reflect the overall criminality of your offending over that period.
37Secondly, in relation to the first importation on 27 August 2023, it is relevant to note that the covers of the two DVDs readily revealed their content as child abuse material. Combined, the two DVDs contained four videos classified as Category 1 child abuse material, depicting relatively lengthy scenes of pre-pubescent girls, aged approximately 11-12, engaged in graphic sexual activity. In one 10-minute video the child is engaged in sexual activity, involving the use of a dildo with another child aged between 12-14, while a representative sample of the other three videos of Category 1 child abuse material, runs for approximately 33 minutes, in which the 11-12 year old girl is being sexually penetrated by an adult male.
38The other 10 videos depict actual children engaged in a range of sexually provocative poses, classified as Category 2 child abuse material.
39Viewed collectively, the degrading and depraved nature of the sexual activity depicted in the videos of pre-pubescent children is an indicator of the gravity of the offending associated with the importation of the two DVDs on 27 August 2023.
40Thirdly, you intentionally purchased the DVDs on 27 August 2023 and 12 September 2023 from the Mandarake website and tracked the importation of your purchases into Australia, using a spreadsheet you created. The ‘Yousei Complete DVD’ imported on 12 September 2023 also contained 22 different scenes of Category 2 child abuse material, the total duration of which ran for approximately 140 minutes. In one video, a female aged approximately 14, is depicted engaging in oral sex with an adult male.
41Yours was not particularly sophisticated offending. For instance, you took no steps to disguise your identity when sending the DVDs to your home address. However, there was a degree of planning to your offending in purchasing the child abuse material online and tracking the deliveries, and more concerningly, your offending was repeated.
42Finally, although the majority of the images contained on the iPad you brought into Australia on 8 December 2023 were animated, ‘Japanese Hentai’ depictions of child abuse material, the content of those were graphic and disturbing. For instance, a representative example depicts two girls, aged 10-11 performing oral sex of a male, who is shown ejaculating on their faces. The iPad also contained 139 images of actual children being category 2 child abuse material, where a representative sample includes a pre-pubescent girl (aged 9-10) in a sexualised pose.
43I accept that the criminality involved in the anime material is of a different nature to that involving actual children. That is not to deny the concerning nature of this offending. Such material has the effect of desensitising those involved, normalising exploitative sexual offending against children and encouraging reciprocal communications, although I note that has not occurred in your case. As the Queensland Court of Appeal explained in R v Edwards:
‘The capacity of child exploitation material, even that which does not depict real children, to affect the community goes beyond the tendency to normalise exploitative sexual activity involving children and even to stimulate potential participants in it. In my view, it serves to fuel the demand for such material, whether or not it involves real children. Further, such material has the capacity to groom not only the recipients of it, but those who may be affected by the recipients of it.’[8]
[8] R v Edwards [2019] QCA 15 at [61]
44The purpose of the incoming declaration form is to prevent the importation into Australia of prohibited material. Your failure to declare the fact you were in possession of child abuse material on your iPad when you signed the incoming declaration form on 8 December 2023, undermines this important protection.
45On your behalf, Mr Gullaci highlighted the absence of a number of factors that are often present in more serious cases. Although your purchased some of the child abuse material, you did not disseminate any of the material you received and did not profit from your involvement in obtaining the images and videos. Compared to other cases of this kind, the amount of child abuse material imported by you was relatively low and the majority of items were comprised of cartoon or anime depictions of child abuse material.
46I accept that the absence of these features is relevant to my assessment of the gravity of your offending and means that your offending is far from the most serious example of this offence. But nor do I consider this to be at the lowest level of the spectrum of offending of this kind. There are no mitigatory factors that alleviate your personal responsibility or moral culpability for this offending.
Guilty plea
47Your early guilty plea, entered at a committal mention on 28 June 2024, is a substantial matter in mitigation of your sentence. Your guilty plea signifies your acceptance of responsibility for your offending and a willingness to facilitate the course of justice.
48There is significant utility, or practical benefit, from your early guilty plea in that it saves the court and the community the time and resources associated with a contested committal hearing and a jury trial.
49Beyond the remorse inherent in your plea, you have demonstrated contrition for your offending by seeking treatment to address your offending behaviours through psychologist, Mr Xie.
Cooperation with authorities (s16A(2)(h))
50Upon your arrest, you cooperated with authorities by providing the passwords to all electronic devices seized through the search of your home on 11 January 2024. You also made certain admissions to controlling the Gmail account and downloading Hentai material from online pornographic websites, although you did downplay the nature of the child abuse material images imported, stating they were limited to cartoon or cosplay material, and denied purchasing any DVDs from the Mandarake website.
Specific and general deterrence (s16A(2)(j) & (ja))
51In sentencing you for offending of this nature, general deterrence and denunciation are sentencing considerations of significant weight. Your offending involved a range of image-based child abuse material, depicting both real children and anime or hentai depictions of children. The videos imported by you depict the sexual abuse of actual children, including children engaged in acts of sexual penetration with adults. There is a paramount public interest in deterring others from offending conduct such as this, which is difficult to detect.
52Despite the fact you have no prior criminal convictions, the sentence I impose must also operate to specifically deter you from future offending of this kind, given some of my reservations regarding your prospects of rehabilitation, to which I will return. However, deterring you specifically from future offending, noting your previous good character, is of less significance as a sentencing consideration to that of general deterrence. I also accept the submission made by your counsel that the salutary effect of the discovery of your offending; the revelation of your offending to your wife and father and the likely burden of your imprisonment, particularly as a first-time offender, will have a deterrent effect upon you.
Offender’s character, age, antecedents and background (s16A(2)(m))
53At the age of 35, you fall to be sentenced as a man with no prior criminal record and are entitled to have your previous good character taken into account. You were charged with this offending in December 2023 and have no subsequent convictions and no other charges pending.
54I also have regard to the fact there are a number factors that will make your experience of imprisonment more difficult, particularly for a first-time offender.
55Firstly, you are not a citizen of Australia and are currently subject to a skilled migration visa issued on 30 May 2019. Upon being sentenced for this offending, there is a realistic risk that you will be deported to China. In your case, the expectation of being deported will weigh heavily upon you, particularly given that your wife intends to remain in Australia with your young daughter, who is an Australian citizen, irrespective of the outcome of any decision made by the Minister.
56Secondly, since coming to Australia, you and your wife have purchased a home in Glen Waverley with a sizable mortgage of $1.28m obtained through the Bank of China. In a letter written to the court by your wife, she states that with interest rate increases, the monthly mortgage repayments have increased to $7,000. In her part-time position, your wife does not earn enough to meet these repayments and says that the family is at risk of losing the family home without your income, which was in the vicinity of $47,000 per annum.
57Although you have recently resigned from your warehouse position, I accept that you have a consistent history of employment in Australia. Your wife states that your father, who has his own health issues, and her family are unable to provide sufficient financial support to meet these repayments, in the way they have in the past. Your wife also states she is reluctant to discuss the situation with her family in China due to the shame this will cause, leaving her feeling isolated. I accept that concern for your wife’s emotional and financial predicament, and the risk of losing the house she lives in with your young daughter, will be a source of considerable stress and anxiety for you in custody.
58I have given full weight to the additional burden of your imprisonment, through a combination of these matters, in moderating your sentence.
59I also have regard to the hardship likely to be caused to your family, including your young daughter, upon your imprisonment more generally. Although Mr Gullaci concedes that the consequences of immediate imprisonment adversely affect most families, in this case, I accept that the risk of losing the family home is distressing, and that this has potential ramifications for the stability of your young family if no other financial support is available and will be a source of real anxiety for them as well as you.
Rehabilitation prospects (s16A(20(n))
60During her initial assessment on 9 September 2024, Ms Cidoni questioned you regarding your offending. During this assessment, you told Ms Cidoni that the images you possessed were ‘digital cartoon images’ and that you believed possessing such images was legal in China and did not understand that this was not the case in Australia. Ms Cidoni reported that you struggled to understand why you were ‘at fault’ given the children being portrayed ‘were not real’.
61In her report dated 15 September 2024, Ms Cidoni assessed you as a low risk of future offending, having conducted psychometric testing including through the Child Pornography Offender Risk Tool (CPORT). In that report, Ms Cidoni states that your CPORT score of 1 suggested a lower risk of reoffending, ‘given the absence of prior criminal convictions, contact sexual offences, significant conduct issues and problematic content-related factors’, stating:
'The content, though legally problematic, likely provided a sense of arousal, offering both distraction and temporary relief from his emotional struggles. Cultural and legal misunderstanding also played a role in his actions. Mr Wang believed the content was legal in China and may not have fully understood its illegality in Australia. His statement that the images were not real suggests he does not fully grasp the severity of his offence.'[9]
[9] Cidoni report at [58]
62As discussed at the first plea hearing, it was not clear to me from reading Ms Cidoni’s first report that her risk assessment had factored both the cartoon-like, or Hentai-type images, and the videos depicting actual children involved in sexual activity. Having raised this matter with counsel, the plea hearing was adjourned for a supplementary report to be obtained from Ms Cidoni.
63Ms Cidoni assessed you further on 29 October 2024 and provided a supplementary report dated 4 November 2024[10]. In that report, Ms Cidoni confirmed that you were not forthcoming in your initial assessment consistent with the responses you provided to officers when you were first interviewed. You were similarly reticent to discuss the full nature of your offending with Mr Xie, initially telling him that your offending related to the use of Hentai only; denying any interest in pornographic material featuring real children. Accordingly, your initial treatment with Mr Xie was limited to your use of Hentai to address the risk of reoffending.
[10] Exhibit 4 - Supplementary Psychological report of Ms Gina Cidoni dated 4 November 2024.
64When you were reassessed by Ms Cidoni, you acknowledged receiving and viewing a broader range of child abuse material, including real children, and admitted to experiencing arousal from these images, but said you would never engage in such behaviour in a physical sense. You told Ms Cidoni that the images of actual children formed a smaller portion of the overall content. You expressed regret for you conduct and apologised for not being more open in the initial assessment.
65Having reassessed your risk of future offending, in her subsequent report dated 4 November 2024, Ms Cidoni restated her original assessment that you pose a low risk of recidivism, stating that the psychometric tests do not differentiate between the use of anime and real images of child abuse material.
66After the first plea hearing was adjourned, you resumed counselling with Mr Xie for a further three sessions. In his further report dated 21 November 2024, Mr Xie states you admitted purchasing the DVDs ‘out of curiosity’, which you said you ‘skimmed through’ and then placed them away[11]. Mr Xie is of the opinion that you have minimised your offending to a degree and displayed some ‘passivity’ during counselling, but attributes these behaviours to your feelings of shame and anxiety about the offending.
[11] Exhibit 5 - Further report of Mr Kefu Xie dated 21 November 2024.
67I have had regard to Ms Cidoni’s risk assessment, coupled with your voluntary engagement in 17 sessions of counselling with Mr Xie, and the ongoing support of your family in assessing your prospects of rehabilitation. These are all positive indications for your future which, combined with your previous good character, lead to me conclude that you have reasonably favourable prospects of rehabilitation. However, this conclusion is not without qualification. I consider that your insight into the seriousness of your offending, and the harm caused by such conduct, is only now evolving. You are yet to fully comprehend and appreciate the link between the viewing of ‘real’ child abuse material and the sexual abuse of the actual children depicted in those images and videos. Undoubtedly, your future prospects of rehabilitation will be enhanced by engagement in ongoing specialist sex offender treatment.
68Your willingness to engage in treatment since February 2024 gives me confidence that you will continue to do so. Clearly, your ability to engage in sex offender treatment in an open and meaningful way will be critical to your future prospects.
Other sentencing considerations
69On your behalf, Mr Gullaci conceded that the gravity of your offending warranted a term of imprisonment but submitted that it would be open to the Court to immediately release you on a recognisance release order (‘RRO’). Alternatively, Mr Gullaci submitted that any sentence of immediate imprisonment should be relatively brief before you are released on an RRO, structured in such a way as to promote your rehabilitation, including supervision and continued engagement in specialist sex offender treatment.
70The prosecution submissions fairly accepted the utility of your early guilty plea, your previous good character, the hardship your imprisonment will cause your family, and the likely burden of your imprisonment having regard to this factor and the risk of deportation. The prosecution also acknowledged your progress with rehabilitation more recently, accepting Mr Xie’s assessment of the cultural factors and shame that impacted on your ability to discuss your offending more openly at first. Notwithstanding the mitigatory effect of these matters, the prosecution submitted that the nature and gravity of your offending warrants an immediate term of imprisonment to give effect to the sentencing considerations of general deterrence and denunciation, but one followed by release on a RRO.
71In considering these submissions, I have had regard to the legislative requirement that I must impose a sentence that is of a severity that is appropriate in all the circumstances of the case. Further, I must not impose a sentence of imprisonment unless, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case.
72In cases such as this, mitigating factors such as an absence of prior criminal convictions, previous good character, and prospects of rehabilitation, are given less weight. However, that does not mean that a combination of mitigating factors and the rehabilitation of the offender have no role to play. Section 16A(2AAA) of the Act requires the Court, when sentencing an offender for a Commonwealth sex offence, to take into account the objective of rehabilitating the offender, including by considering any conditions to impose, or in determining the length of any sentence or non-parole period. Whilst strictly not applicable to a charge of importation, I consider the sentencing considerations have equal application here.
73Finally, I have regard to the authorities to which I was referred by the prosecution and defence as informing current sentencing practices. Consistency in sentencing is an important aspect of the rule of law. The cases to which I was referred by the prosecution are five intermediate decisions of courts of appeal that are said to be illustrative of sentencing patterns for comparable offending. However, on reading these authorities, a number of factors distinguish them from your offending.
74In the case of Lee[12], the offender imported a DVD containing four videos of child abuse material for personal use on a single occasion. Another DVD containing child abuse material was imported that day, and taken into account in sentencing the offender under s16BA of the Act. The covers of the DVDs contained images of naked and semi-naked children, disclosing the nature of the material. The accused was 53 and had no prior record. The accused was sentenced, on appeal, to 15 months’ imprisonment to be released on an RRO after serving 10 months' imprisonment, overturning a sentence involving immediate release. In that case, significantly, the offender was sentenced following a trial.
[12] R v Lee [2013] WASCA 216
75In the case of Phinthong[13], the offender pleaded guilty to possession of child pornography and importing tier 2 goods comprised of four videos of child pornography, depicting 10-12 year old females posing in a sexualised way and of 10-12 year old girls engaged in oral sex with an adult male. The accused was sentenced to a total effective sentence of 18 months’ imprisonment with a recognisance release order after serving 9 months. The offender was 27 years old with no prior record and a low risk of reoffending.
[13] Phinthong v R [2011] WASCA 192
76In the case of Ponniah[14], the offender imported child pornography on a laptop and hard-drive containing 18 stories, 38 computer generated images, and six movies, all of which comprised anime. The offender, who was 23 years old, and had no prior record, was sentenced to six months' imprisonment with immediate release on a recognisance release order. In contrast to your case, no real children were involved, and the importation occurred on one occasion only.
[14] Ponniah v The Queen [2011] WASCA 105
77I have also had regard to the various sentences imposed at first instance referred to me by defence, given the limited number of recent intermediate appellate decisions relating to this offence. These sentences broadly reveal that sentences with immediate release usually involve single instances of low level offending. For instance, in MB[15], the offender was sentenced to imprisonment with immediate release for importing a naked child sex doll. This offending is of a starkly different nature to yours. Other cases, such as Cruz[16], involved far more serious offending than yours, including importation of thousands of images depicting the most depraved sexual activity with children, including bondage and sadism. In that case, a sentence of 3 years’ imprisonment was imposed with a recognisance release order following 12 months' immediate imprisonment.
[15] R v MB [2019] NSWDC 992
[16] R v Cruz [2010] QCA 90
78As always, every case must turn on its own facts and circumstances. What does emerge from these cases is that sentences of imprisonment are generally imposed for offending involving the importation of child abuse material, in order to give effect to the sentencing principles of general deterrence and denunciation.
79I have considered the sentencing submissions made on your behalf. Ultimately, however, having concluded that no sentence other than imprisonment is appropriate to the circumstances of your case, despite the matters that apply in mitigation of your sentence, I consider that a period of immediate imprisonment is warranted to reflect the repeated and seriousness of your child abuse material related offending over a period of three and a half months, whilst recognising that the majority of material imported by you did not depict real children.
80Against the gravity of your offending, I have balanced the various mitigating factors, including your early plea and burden of imprisonment in determining the length of your sentence. In fixing a RRO, I have also sought to best promote your prospects of rehabilitation and the community protection that will follow.
Sentence
81Balancing each of the matters to which I have referred, while having regard to the maximum penalty and s16A(1) of the Act, I sentence you as follows:
82On Charge 1, importing a tier 2 good into Australia, namely child abuse material, you are convicted and sentenced to 16 months’ imprisonment.
83Pursuant to sub-section 20(1)(b)(i) of the Crimes Act 1914 (Cth) I direct that you be released after serving four months of the term of imprisonment imposed on Charge 1, upon you giving security by way of recognisance of $2,000 to comply with the following conditions:
(a) that you are to be of good behaviour for a period of two years;
(b) that you are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management, or their nominee; and
(c)that you attend for assessment, and if assessed as suitable, to undertaken and complete a sex offender treatment program or any other programs to reduce the risk of further offending as directed.
84I am required to explain the purpose and effect of the recognisance release order I have just made. The order reflects the gravity of the Commonwealth offence, but also the mitigating factors to which I have referred. If you are of good behaviour over the following two-year period following your release, and comply with the conditions, then you will have complied with the recognisance.
85If you are not of good behaviour, or you fail to comply with the conditions of the order, you may be brought back before the court. Depending on the nature and seriousness of any transgression, the court may either take no further action, impose a fine, extend the period of your good behaviour, impose a different penalty, or revoke the recognisance release order, resulting in your imprisonment for the balance of your sentence.
86I indicate, pursuant to s6AAA of the Sentencing Act 1991, that had you not pleaded guilty to these offences, the sentence I would otherwise have imposed is a sentence of two years, 10 months’ imprisonment, with a RRO after serving 12 months’ imprisonment.
87Finally, the offences to which you have pleaded guilty are Class 2 offences for the purposes of the Sex Offenders Registration Act 2004. On being found guilty of one Class 2 offence, you become a registrable offender and must comply with the reporting obligations set out under that Act for a period of eight years.
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