R v MB
[2019] NSWDC 922
•25 October 2019
District Court
New South Wales
Medium Neutral Citation: R v MB [2019] NSWDC 922 Decision date: 25 October 2019 Jurisdiction: Criminal Before: Payne DCJ Decision: Sentenced to imprisonment for two years and three months. Pursuant to section 20(1)(b) Crimes Act 1914, to be released forthwith upon entering into a recognizance, self in the sum of $500, on the following conditions:
1. Attend upon Community Corrections at Bowral within seven days and accept their supervision for a period of two years, as directed, including in relation to psychological counselling and treatment;
2. To be of good behaviour for a period of three years.
Catchwords: SENTENCING – Commonwealth offending – offence contrary to the Customs Act 1901 – importation of Tier 2 goods without approval – child pornography material
Legislation Cited: Crimes Act 1914 (Cth)
Customs Act 1901 (Cth), s 233BAB(5)
Category: Sentence Parties: Regina (Crown)
MB (Offender)Representation: Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Prime Lawyers (Offender)
File Number(s): 2018/271310
Judgment
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In relation to this matter, MB comes before the Court in respect of one offence. The offence is contrary to s 233BAB(5) of the Customs Act 1901 (Cth). It is, between 20 June 2018 and 4 September 2018, intentionally import into Australia, a Tier 2 good, namely child pornography material, without approval. The maximum penalty prescribed for the offence is imprisonment for ten years and/or 2,500 penalty units. He adhered to his plea that he had entered in the Local Court before this Court. He was committed for sentence on 10 April 2019. He was arrested on 4 September 2018. He was granted bail and has remained on bail.
Factual Circumstances of the Offending
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There is an agreed statement of facts in this matter:
Offences
MB (the offender) has entered a plea to the following offence: s 233BAB(5) Customs Act 1901 (Cth); import into Australia Tier 2 goods, namely a child sex doll, without approval; between 20 June 2018 and 4 September 2018; maximum penalty ten years imprisonment and/or 2,500 penalty units.
Importation
On 20 June 2018, a package (the consignment) was intercepted by Australian Border Force. The package was marked as follows:
EMS: EA375032305CN
Consignee Name: MB
Consignee Address: xxx Church Street, Apartment yyy, Parramatta, NSW, 2150
Phone: xxxx xxx 074
Flight Details: CA173
Origin: China
Good Description: Toys, gifts
The package was examined and found to contain a naked child sex doll. The sex doll was made of silicone, was approximately 70 centimetres tall and had a narrow chest and waist. The sex doll depicted a child under five years old. The doll had a realistic and detailed silicone labia majora and minora which were malleable to the touch. The breast size was small and underdeveloped. The waist measured approximately 15 centimetres and the hips measured approximately 20 centimetres across.
Also located inside the packaging was a crocheted Christmas-themed bikini and an instructional pamphlet.
The instructional pamphlet inside the package stated that the company specialised in the research, development, production and sale of full body silicone sex dolls. The booklet contained details about the different doll sizes and cleaning instructions available from the manufacturer. It further stated that the function of the doll was ‘Non-intelligent > 100 centimetre, vagina and oral sex. Before using please use lubricating oil and condom.’
The doll was categorised as ‘child pornography’.
Permissions
Goods containing child pornography are prohibited from importation unless permission in writing has been granted by the Attorney General or a person authorised by him to import the goods.
No authorisation was provided for the importation of the doll contained within the consignment.
Examination of Offender’s iPad
On 23 August 2018, the offender arrived into Sydney International Airport on a military flight. The offender was subject to examination from ABF officers at the airport and several electronic devices, including an iPad (the offender’s iPad) were held for further examination.
The contents of the offender’s iPad were downloaded and examined and the following was identified:
(a) A number of web addresses related to the importation of the consignment containing the doll, including:
(i) 28 July 2018: multiple accesses to the Australia Post tracking website, tracking EA375032305CN
(ii) 6 August 2018: access to the Home Affairs website, including pages (1) ‘Importing by post or mail’; (2) ‘Make an enquiry’
(iii) 20 August 2018: access to the EBay website, including pages (1) ‘Resolution Centre’; (2) ‘Online Customer Service - Get help with an item that hasn’t arrived’
(b) A number of screenshots depicting the tracking of consignment EA375032305CN.
(c) Web history from various consumer websites such as ‘Alibaba’ and ‘made-in-china’ reflecting that various child sex dolls had been viewed, including products with the following descriptions:
(i) 65 centimetre life size silicone sex doll reborn baby doll
(ii) Top quality black silicone sex dolls 65 centimetre Japanese lifelike love doll
(iii) China hot sale smart silicone sex doll sex girl doll real sex doll
(iv) 65-68 centimetre sex dolls
(v) 100 centimetre young girl sex doll
(vi) Real teen sex doll jasmine
(vii) 135 centimetre flat chest small girl sex doll small cup silicone sex doll
(viii) Flat breast and small breast sex doll
(ix) Newest 100 centimetre loli sex doll with no breast young girl love dolls
(x) 100 centimetre small flat breast sex doll for men girl doll
(xi) Small breast little young girl flat
(d) Stored videos and pictures depicting the technology and techniques used to make silicone dolls and ‘reborn’ dolls, including videos titled:
(i) Testing Drink and Wet system 22” Full Body Silicone Baby Doll Antoinette #5 of 6 by An Huang
(ii) Full Silicone Reborn Baby Girl Doll Has Skeleton Big Eyes
(iii) Squishiness and Flexibility Tests with Two Silicone Baby Dolls Reborn
(iv) Box opening of ivita full body silicone baby girl
(e) Multiple web searches related to children’s underwear and wigs, including:
(i) Children’s clothing sizes - international conversion charts and size guide
(ii) Girls Thong Underwear - Girls Thong Underwear Manufacturers
(iii) Young sexy girl underwear
(iv) 2017 Fitness Fashion Magic Panty Kids Thong Underwear - Buy kids thong underwear, magic panty, lovely see-through thong product on alibaba.com
(v) Cute Korean Baby Kids Infant Child Wig Long Curly Hair Princess Girl Wig
(vi) Fashion Girl Wig Hair Toddler Child Brown Black Curly Wigs For 2-5Y old
(f) Access records for approximately 263 YouTube videos depicting prepubescent girls performing gymnastic stretches in front of the camera, including videos entitled:
(i) Little Girl Gymnastic Stretches
(ii) Blond Little Girl doing gymnastics
(iii) I can put my head behind my leg
(iv) Doing splits in my room diary
(g) Approximately 253 images stored of prepubescent females in various gymnastic poses or stretches.
Search Warrant and Arrest
On Tuesday 4 September 2018, ABF Investigators executed a search warrant on the offender’s residence.
During the execution of the search warrant, the white Apple iPad previously referred to was returned to the offender but subsequently seized pursuant to the search warrant.
The offender was cautioned and questioned during the search warrant. The offender largely declined to answer questions, however did state the following:
(a) He had been considering purchasing a ‘reborn’ doll as a companion doll, as he lived alone.
(b) He didn’t search for ‘sex dolls - child sex dolls’.
(c) He was not aware that such goods were prohibited and that you need permission to import them.
(d) He had seen a lawyer as a result of his phone being seized at the airport and he had searched ‘silicone reborn baby dolls’ in order to show his lawyer what he had previously searched.
The offender was then arrested.
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Clearly this was serious behaviour. What has been conceded by the defence and of course accepted by the Crown, as to why he did import this particular item, I do not accept his account nor what is really implied in the facts by the Crown, that there was some background to this, which made it more serious.
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In short, it was accepted during proceedings on sentence that he would be sentenced for what he actually did, which is the intentional importation of a prohibited Tier 2 good and I cannot find and of course if it made the offence more serious, I would have to be satisfied beyond reasonable doubt. I cannot find what his motivation was.
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He currently lives alone in Picton and he has the support of his parents who reside nearby. He is currently in receipt of payments from the Department of Veterans Affairs. He stated that he was employed with the Royal Australian Air Force for 27 years and was dismissed in March 2019 due to the pending offence. I take into account to his credit the service he has given to the Australian community.
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I put to one side the s 10 bond approximately 20 years ago for attempting to import a toy gun. He is a person of prior good character. He has unfortunately had a significant history of alcohol abuse, dating back approximately nine years. He has had chronic mental health symptoms for several years and he has been diagnosed with post-traumatic stress disorder.
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The Crown tendered written submissions and I have read those submissions. They deal with the general principles in relation to child pornography offences. The Crown also indicates the maximum penalty remains as a yardstick. I have already made reference to the guilty plea but he is certainly entitled to the utilitarian value of that guilty plea. General deterrence is a significant feature of this sentencing exercise.
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He is now aged 52 and was aged between 50 and 51 at the time of the offending. In my view he has got reasonable prospects of rehabilitation. In the defence case, there was a detailed psychological report but as I have said, motivation in that report was not pressed but it was emphasised that he has no criminal record. He is living on a pension and he is in poor physical and mental health.
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It was said that the rehabilitation prospects of the offender are good. He is at low risk of re-offending. In my view he has reasonable prospects and I make no finding one way or the other as to whether he will or will not re-offend or is likely to re-offend. He has been single all his adult life. Reference is made to his 27 years with the Royal Australian Air Force. It says he was dismissed from employment as a result of the offence and this is some form of extra curial punishment.
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He has been assessed as suitable to do community service work. Reference is made to his diagnosis of post-traumatic stress disorder, major depressive disorder with anxious distress and alcohol abuse disorder of moderate severity.
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It was submitted that the Court would balance the interests of general and specific deterrence as well as satisfy the requirements of s 16A(1) of the Crimes Act 1914 by either dealing with the offender by an order under s 20(1)(b) and ordering the offender to be released forthwith, upon entering into agreement to provide security pursuant to s 20(1)(a).
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It is also suggested that the order could be subject to a number of hours of community service. That is a matter to which I will return later in the remarks. There is also a psychological report which I have read and then reference material.
Sentence
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Having considered the objective seriousness of the offence and the subjective features, I impose the following sentence.
You are convicted. The sentence I would have imposed prior to reduction for utilitarian considerations is three years. It will be reduced to two years and three months, to date from today. In accordance with s 20(1)(b) of the Crimes Act, you are released forthwith, upon entering into a recognizance, self in the amount of $500, with the following conditions:
(1) That you attend upon Community Corrections at Bowral within seven days and accept their supervision for a period of two years, as directed, including in relation to psychological counselling and treatment;
(2) To be of good behaviour for a period of three years from today.
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The Court orders that pursuant to s 23ZD of the Crimes Act and upon the application of the Director of Public Prosecutions the following items are forfeited to the Commonwealth by consent: (a) Child-like sex doll.
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Decision last updated: 06 July 2020
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