Director of Public Prosecutions v Leverton

[2017] VCC 1652

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT WODONGA
CRIMINAL JURISDICTION

CR 17-01619

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY LEVERTON

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wodonga
DATE OF HEARING:
DATE OF SENTENCE:	13 November 2017
CASE MAY BE CITED AS:	DPP v Leverton
MEDIUM NEUTRAL CITATION:	[2017] VCC 1652

REASONS FOR SENTENCE
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Subject: importing tier 2 goods – section 233BAB (5) Commonwealth Customs Act- sex doll
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr I. Buckley
For the Accused	Ms B. Johnson

HER HONOUR:

1Anthony Leverton, you have pleaded guilty before me today to three charges.

2The first charge is a charge under the Commonwealth Customs Act  of importing tier two goods – that is, importing an item which is a prohibited from being imported into Australia.  The item is described on the charge as an item of child pornography.  In this case, it is a child sex doll- that is, a representation of a child having all of the sexual organs supplied with the doll and being a child which you estimated in your record of interview as being between 15 and 16 years of age.

3Now that type of doll is a prohibited import and you have pleaded guilty to that charge.

4On you being apprehended in relation to that matter, as I understand it, the police searched your house and found two crossbows and an air rifle. They are the subject matter of the two summary charges, the first summary charge relating to the two crossbows, and the second charge relating to the air rifle.

5So those matters are being dealt with by me today for convenience so that all outstanding matters can be dealt with together.

6Now before going into what appear to me to be the quite extraordinary and unique circumstances surrounding the importation charge, I am going to deal quite briefly with the summary charges.

7It is my view that you should be fined in relation to those charges and I am going to impose a fine of $300 in relation to each of those charges.  So that is a total of $6000 fine.

8The reason that I am imposing that penalty on you today rather than a period of imprisonment in relation to those matters is firstly, that I accept the submission that has been made on your behalf that you are a hoarder and that you hoarded those materials.  I understand your possession of the air rifle goes back in time to the 1980s.  I do not know how old the crossbows were but I accept from your plea that they were not in usable form. Neither the quiver nor arrows for the crossbows were in your possession. They had been lost quite some time ago. One of the crossbows was broken.

9I accept therefore that those items were kept by you, not for any nefarious purpose; there is no suggestion that you were going to use those in any way, but that they were kept by you simply out of a neglect, and arising out of your presentation as a hoarder.

10I accept also as the prosecution concedes, that you did intend to dispose of them and did not get around to it.

11So in relation to the summary charges, I will make the order that you pay a fine of $300 in relation to each of the charges.

12In relation to the crossbows, as I understand it, they are automatically forfeited and I do not need to make any order in relation to that.  I will make a disposal order in relation to the air rifle, if that is handed up to me.  I understand there is no opposition to those orders being made.  So that disposes of the summary matters.

13I come now to the fact situation surrounding the major matter which is the charge of importing the sex doll.

14As I understand it, that doll was ordered by you through a popular and legitimate website by the name of AliExpress. You had been directed to that site by a magazine called Haute Doll Magazine.  This is a legitimate magazine and it is for people who are collectors of dolls and dolls houses.

15There are many such people in this world and presumably quite a good market for the sale of dolls and dollhouses.

16You are a collector of dolls. I will return to this interest in dolls later in these reasons.

17Mr Leverton, I have heard a great deal this morning and I have read in the report that has been tendered by your counsel about your early life and about your childhood background.

18As I understand it, you have always felt female.  You were in a position in your early life where you were completely unable to give into that feeling of gender dysphoria. I accept the submission that has been made on your behalf by your counsel that the life which you had been leading, which was a life of trying to conceal that gender dysphoria, became unmasked by the questions that you were asked by police in the record of interview.  In particular, I refer to the explanations which you gave to the interviewing police as to why it was that you were importing a doll.

19I accept that you have always had this interest in dolls. That interest was evident to the interviewing police because you told them, and it was evident from the contents in your house, that you collected dolls such as Barbie dolls and My Little Pony dolls. You told police you did so because they were "cute" and because you were trying to act out a childhood as a girl which had been denied to you.

20Mr Leverton, if you had ordered any other of the dolls that were in or referred to in that website or that magazine, than you would not be before this court today.  Unfortunately your search for an appropriately lifelike doll to order on this occasion led you to this doll which is in fact a sex doll.

21Now you have pleaded guilty to this charge and you clearly have carried out this crime.  The reason that this importation is a crime is that the doll had explicit sexual organs. Dolls such as this are commonly used for masturbation. It looked like a young girl. A user of such a doll could thereby simulate having sexual contact with a young girl. It is a doll that contains an artificial vagina, an artificial anus and contains a mouth which is capable of being used as a sexual orifice.  Clearly the purpose of this doll was that it would be used by an owner for sexual gratification. It was not the sort of doll which you were accustomed to collect.

22The evidence in this case as to the age of the doll seems almost solely provided by your record of interview.  You described the doll pictured on the advertisement as looking like a 15 to 16 year old girl. If the doll had been the representation of an adult woman, you would not have committed any offence.

23I presume that you made that assessment of age of the doll being a 15 to 16 year old from the website from which you ordered the doll, because as I understand it, you did not actually get to see the doll as it was not delivered to your address. I will sentence you on the basis that that is what the doll looked like when it arrived.

24Clearly such a device is a prohibited device.  You have attempted to import something which you are not allowed to import.  But even more significantly, it is clearly a device which is designed to be used by a person to simulate sex with an underage child.  That is the real danger of devices of this description and that is why they are banned.

25Child pornography is a dreadful thing.  Anything which encourages people to become interested in child pornography, even though it does not involve an actual child, is also a dreadful thing. 

26Child pornography usually involves photos of actual children and when it does, then it is horrific.

27This item is in my view a step removed from that actual depiction of children but it is still a very seriously dangerous item for our community.  I accept that it is dangerous on the grounds that the prosecutor put to me and which has been set out in the case of Ponniah to which he referred me.

28The danger is that such an item can normalise sexual behaviour with children and the fact that it is not real, although making it less repulsive than pictures of sexual activity with actual children, puts it still in a very repulsive and repugnant situation as far as normalising sexual behaviour with young children is concerned.

29So I accept that what you have imported is an item of child pornography and a very potentially dangerous item of child pornography.

30I accept also the evidence which I have heard through the psychological report and through your own record of interview, that you did not intend to use this doll for any sexual purpose.

31It appeared to me from the record of interview that when the police officers interviewed you initially, that they were sceptical about that explanation.  I think surprised is perhaps too soft a term. They were amazed, I think, from the record of interview, that that would have been your purpose.

32They confiscated 11 electronic items, computers and items of that sort from your house.  I do not think it is too speculative to say that they probably thought that they would find the child pornography that would normally accompany this sort of material on those items; but they found nothing.

33You are sentenced today on the basis that your explanation, that is, that you bought the doll because you are interested in dolls, because you wanted a life like doll to give it to your partner as a present, and further that you expected to sit it in your house fully clothed without being used for any sexual purpose, is an accurate description of what you did really intend to do with this doll.

34So, many of the cases of which I have been referred to by the prosecutor are very difficult to apply to your situation. Most of those cases, in fact I think all of those cases, involve evidence of some interest of a sexual nature or evidence of an interest in profiting out of selling items of a sexual nature.

35Mr Leverton, there are many matters which go to your favour in this plea hearing. This issue of your extreme naivety and child-likeness in ordering this doll seems to me to be one of the principal ones.

36There are other matters I need to take into account as well.  You made full admissions in the record of interview and pleaded guilty at the first available opportunity. 

37You have hurt yourself very badly by attempting suicide on the night of being apprehended by the police. The physical results of that attempted suicide include a fractured pelvis, fractured bones in the feet and other significant medical problems which will follow you for the rest of your life.

38It was put to me that your contrition could be shown by that suicide attempt.  To some extent I take that into account, although one could not say that the physical injuries which you have caused yourself should be the driving principle in sentencing you today.

39It was also said on your behalf that this is in effect a victimless crime.  It will be apparent from what I have said to date that I do not regard this as being a victimless crime.  It is a crime which has the potential to normalise sexual behaviour with children, and so to that extent it is not a victimless crime, and its seriousness I have already outlined.

40Mr Leverton, your counsel has suggested to me that it would be appropriate, having regard to the unique character of the circumstances surrounding your offending, to take a course under s.19B of the Commonwealth Crimes Act and discharge you without proceeding to a conviction.

41I can do so if the circumstances set out in that section are fulfilled.  In my view the offending itself to which you have pleaded guilty is too serious for me to take that course.  I do need to denounce your offending.  The principle of general deterrence is of lesser weight in this case because of the factors which are set out in the report of your psychologist and particularly those psychological factors which pre-date your suicide attempt.

42Your psychologist diagnosed you as suffering from a severe social phobia together with a generalised anxiety disorder which you have suffered for many years.  You seem also since school days to have been attempting to cope with your preference for female toys, dolls and dresses and trying to put that to one side whilst you were also trying to go through an education system and a home life in which you were encouraged to be a male.

43I accept those submissions as having a great deal of weight.  They are certainly not submissions that were contested in any way in this hearing.

44But I acknowledge that I have a responsibility to send a message to people who wish to import these sorts of sex dolls, that when those sex dolls are depictions of children, that depiction is a very serious matter and should be dealt with accordingly.

45So in my view s.19B is not open to me on the circumstances of this case.

46The prosecutor has not suggested that I sentence you to a term of actual imprisonment.  He accepts the importance of the matters that have been put on your plea and suggests that instead I sentence you under s.20B of the Commonwealth Crimes Act.-that is, to sentence you to a period of imprisonment but fully in effect, to suspend the sentence by ordering that you be released immediately on a recognisance release order.

47Mr Leverton, I do not take the view that you should be sentenced to a period of imprisonment.  All of the factors that I have heard and particularly the ones that I have outlined now just briefly in these sentencing remarks seem to me to justify your release under s.20 (1A) of the Act.  So I will release you without passing sentence upon you entering into a recognisance release order.

48Now that means, Mr Leverton, that you will not have a sentence of imprisonment against you but you will have some strict conditions of the recognisance release order.

49The recognisance release order I will impose will go for three years starting today.

50You must be of good behaviour within those three years.  If you commit any other offence, than you may well come back before me and I will be then looking to impose a period of imprisonment on you as a result of your breach.

51I will not make any order for compensation and I do not propose to make any other order.

52Mr Leverton, your psychologist suggested you need some assistance and treatment.  Insofar as she suggests that, it is my understanding from her report that that is in relation to this issue of gender dysphoria.  I believe that you are capable of taking up that suggestion and getting the appropriate assistance.

53But I do not take the view that that is a necessary condition of the recognisance release order.  The reason that I do not take it as being necessary for this Court to impose is that I am satisfied from all the evidence that it is most unlikely that you will ever reoffend.

54You are a man who has had very little contact with the law.  You do have one prior for careless driving but I view that prior as being irrelevant in my sentencing task today.

55You are otherwise a law abiding citizen of the community and have been since you became an adult.  I do not have any fear at all that you will reoffend in any way once you leave this court today.

56Mr Leverton, we are going to have to spend some time working out the exact way in which that order is to be achieved from the sentencing schedules; the schedules to the Crimes Act and so I may need to speak to you again once those exact orders are produced.

57But what I want to make sure that you understand now is that I have sentenced you to be fined in respect of the summary matters.  I have sentenced you to be released on giving a recognisance; on signing a recognisance release order.  That will operate for three years.  I need to indicate a surety and I will indicate a surety of $2000.  That is an amount that will only be paid by you if you breach the terms of the recognisance release.

58MR BUCKLEY:  Sorry to interrupt, Your Honour, but rather than the term surety, does Your Honour mean a recognisance amount of $2000?

59HER HONOUR:  Yes, sorry, a recognisance amount of $2000.  All right.  Well those are the matters, the principle matters that I intend to achieve by means of this sentence.  Are there any other matters, Mr Buckley that I have forgotten?

60MR BUCKLEY:  No, that is everything for now.  I am just drafting up the order for you.  Then what I propose to do is to email it to your associate, have it printed and Your Honour will sign the order, Mr Leverton will sign the order.  There is also the matter of the consent to retention destruction form that I would seek to have
Mr Leverton to sign when he signs the bond form.  It may take between five and ten minutes.  I do not know if Your Honour wishes to stay on the Bench or ‑ ‑ ‑

61HER HONOUR:  No, I will leave the Bench so that we can work it out carefully.  Yes, so the charges in relation to the possession of the items, the summary charge, will be with conviction.

62Yes, is there anything else that you wish to mention Ms Johnson, that I have forgotten?

63MS JOHNSON:  No, Your Honour.  Thank you.

64HER HONOUR:  Thank you, Mr Leverton.  I will leave the Bench whilst this is done.  I will just want to emphasise for you that once you sign these documents, that you will need to make sure that you are of good behaviour, that you do not get into any further trouble or else you will come back to be sentenced again before me. 

65ACCUSED:  Yes, Your Honour.

66HER HONOUR:  Yes, all right.  Thank you, Mr Tipstaff.  I will leave the Bench.

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