R v Munday

[2021] NSWDC 625

District Court

New South Wales

Medium Neutral Citation:

R v Munday [2021] NSWDC 625

Hearing dates:

10 November 2021

Date of orders:

18 November 2021

Decision date:

18 November 2021

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [47]

Catchwords:

CRIME — Importation Offences — Commonwealth offences — Intentionally import prohibited

CRIME — Commonwealth offences — Possess child-like sex doll

CRIME — Commonwealth offences — Possess/control child abuse material-use carriage service

Legislation Cited:

Commonwealth Criminal Code (Cth) 1995

Customs Act (Cth) 1901

Crimes Act (Cth) 1914

Cases Cited:

R v Hutchinson [2018] NSWCCA 152

Minehan v R [2010] NSWCCA 140

Porte [2015] NSWCCA 174

De Leeuw [2015] NSWCCA 183

R v Clarkson (2011) 32 VR 361

Hall v R [2021] NSWCCA 220

R v Holder [1983] 3 NSWLR 245

Mill v The Queen [1988] HCA 70

Cahyadi v R [2007] NSWCCA 1

DPP (Cth) v Beattie [2017] NSWCCA 301

Kannis v R [2020] NSWCCA 79

Category:

Principal judgment

Parties:

Regina (Crown)

Munday (Offender)

Representation:

Debnam Solicitor for the Commonwealth Director of Public Prosecutions.

Cranney Solicitor for the offender.

File Number(s):

2020/00130841

Publication restriction:

Unrestricted.

Judgment

1. Peter Munday (“the offender”) appears for sentence on the following three Federal offences:

• Pursuant to s233BAB(5) of the Customs Act, that between 1 April 2020 and 1 May 2020 he imported tier 2 goods without approval, specifically, a child like sex doll, an offence with a maximum sentence of 10 years; count 1.

• Pursuant to s273A.1 of the Commonwealth Criminal Code (“CCC”), that he possessed a child like sex doll on 1 May 2020, an offence with a maximum sentence of 15 years; count 2.

• Pursuant to s474.22A CCC that he possessed child abuse material in a data storage device and used a carriage service to obtain or access the material, an offence with a maximum sentence of 15 years; count 3.

2. I take the maximum sentences into account as a legislative guidepost as to the legislature’s regard as to the seriousness of the offending in determining the appropriate sentence.

3. The offender was born on 30 October 1982 so he is now 39 years old. The dates of the offending as stated on the Court Attendance Notices are between 1 April 2020 and 1 May 2020 for count 1 and 1 May 2020 for counts 2 and 3. At that time the offender was 37. He was arrested on 1 May 2020 and spent one night in custody.

The facts and objective seriousness

4. The facts concerning count 1, the import charge are straightforward. The import was detected by authorities. The delivery was permitted to proceed. This led to a search of the offender’s premises. This led to the seizing of computer equipment including hard drives, and the obtaining of an iPhone of the offender on which was stored the order confirmation for the import relating to count 1. There was also seized objects from a wardrobe which go to the possess child sex doll charge, count 2.

5. So far as count 1 is concerned the order for it was found on the iPhone. What was ordered was a “Chinese love doll teen sexy doll 100 CM” with the evidence showing a selection of the physical characteristics of the doll sought by the offender.

6. So far as objective seriousness is concerned I consider it low. I consider it to be more than the bare minimum to make out the offence but not by much and only really because of the degree of detail sought in the order. That said it is the height of the doll that best indicates that this is a child sex doll. The actual order is for a teen doll, and it is not expressly ordered as a child doll, and those terms do not entirely overlap.

7. Count 2 of possess child like sex doll like arises from what was seized from the wardrobe. It is important to note that it is a different object or objects than for count 1. That is, separately to what had been imported the offender was also in possession of a child like head/mouth sex aid. The head featured an open mouth and oral cavity and was childlike in appearance. Also obtained was a childlike torso with an orifice simulating an underdeveloped vagina and vagina canal. In my view this is a more serious matter than the first count. This is because, although the doll concerned with count 1 is admitted to be a child sex doll, these characteristics as described by the facts, are more clearly the characteristics of a child. Like count 1, the facts do little more than make out the bare offence, and whilst I assess it as more serious than count 1, I consider it to still be in the low range of objective seriousness.

8. Count 3 is the charge of possess or control child abuse material obtained or accessed using a carriage service. There was a digital examination of the electronic devices found upon the execution of the search warrant. That examination found 3950 image files and 330 video files which constituted child abuse material. The images were of children aged from 2 to 15. By reference to the child exploitation tracking system (CETS) scale these images included images in categories four and five which means respectively penetrative sexual activity between children and adults or children and children and, sadism, humiliation or bestiality. The facts do not break down a total for how many images appeared in the different categories. It was agreed by the parties at the hearing that 70% of both the images and the videos fell into category six which is animated or virtual depictions of children engaged in sexual poses or activity. That figure was intended to be approximate but applying it to the total of images and videos gives a number of 2996 meaning that 1284 images and videos were not of the category six type, and breaking that down further, 99 videos were not category 6, and nor were 1185 images (remembering that the figures are approximate).

9. The facts set out examples of the titles found on the files and also gave a description of some of the images and videos. The Crown also produced at the hearing a sample booklet of some of the images. That the images included examples of category 4 and category 5 material suffices to indicate the degree of abuse represented by this material. There was an image/video involving a dog licking a female child’s vagina and there was graphic images of females to my estimation aged approximately five or six being vaginally penetrated by an adult male penis.

10. In assessing the objective seriousness of this offence, as submitted for the offender the most favourable feature, or better expressed, least damaging feature, is that so much of it was not involving real children. This of course means that the viewing of such material does not directly result in abuse of real children to enable its creation. At the same time however, it does encourage the same industry as well as feeding the unhealthy demand for this kind of material and in its own way assists in perpetuating the abuse of children. Nevertheless, it is a factor which I do take into account.

11. The Crown referred to R v Hutchinson [2018] NSWCCA 152 which revised a range of matters that had been identified in Minehan v R [2010] NSWCCA 140 relevant to an assessment of objective seriousness for offending of this type. There are 14 such matters which are relevantly addressed as follows:

• Whether actual children were used; This is discussed above. Also discussed above is the nature and content of the material including the age of the children and the gravity of the sexual activity. I have commented on the absence of any detailed breakdown of the approximately 1200 images falling into categories 1 to 5 inclusive. Nevertheless, the fact that the examples given in the facts focused on categories four and five shows that there was material of a very grave nature.

• The extent of any harm to the children. There is no evidence of actual physical harm save that it goes without saying that an adult penetrating a five or six-year-old must cause harm and hurt. That said there was not any brutality in the material the court was referred to beyond the brutality inherent in the acts concerned, that is there was no other assault beyond the sexual.

• The number of images. The total number of some 4200 is significant but this point is diluted to some extent because of the large amount of non-real life material.

• There is no suggestion of dissemination or transmission nor is there any suggestion of any benefit being made by the offender or payment by him to other people. Nor is there any suggestion of him being close to those responsible for creating it. It seems and I find that this is a case of a person, the offender, exploring those parts of the Internet where remote access simply through the Internet to this material can be gained. On that basis the degree of planning and sophistication is basic as is the method of storing the imagery. There is no suggestion of any protection by encryption. The images were simply stored on the hard drive of the device in question with some of them in file paths containing the term “downloads”.

• In a similar vein there was nobody on the evidence communicating with the offender and it would appear he acted alone in his Internet searching. There is no suggestion that this material could be seen by others consistent with his reclusive lifestyle.

12. I have taken these matters into account. There is a degree of seriousness in the animated material, despite the lack of real children, and then there is the very grave material contained within the remaining 1200 images and videos. There are cases such as Porte [2015] NSWCCA 174 and De Leeuw [2015] NSWCCA 183, where the amount of imagery exceeded 30,000 images. Those cases are perhaps the standout cases for volume. The fact remains that in excess of 4000 images is significant as is 1200 images. In my view but for the category 6 material I would assess this in the mid range of objective seriousness. That so much of the material did not include real children, a matter expressly referred to in Hutchinson as being a relevant matter for objective seriousness, causes me to assess objective seriousness as being in the range of high low to low mid.

The offender’s subjective case

13. The offender entered a plea of guilty at the earliest opportunity. It was submitted on his behalf that he should therefore have the benefit of a 25% discount on sentence. The Crown agreed with that submission and a 25% discount will be applied.

14. The offender has no criminal history.

15. The offender read and relied upon an affidavit of his sister, Ms Kylie Munday. She was not cross-examined. From the affidavit she states that what was said to the psychologist Dr McSwiggan was true save for some matters where she had a different recollection, notably that their father left 20 years ago not 10 years ago and that they moved to their current residence about four years ago rather than two years ago. The affidavit goes on to state that there was a distant relationship between the offender and his father, that the offender was reclusive, that he was helpful around the house and overall a generous person, hard worker and of sober habits. He gives assistance to his mother who has mobility issues.

16. The report of the psychologist Dr Sally McSwiggin was dated 12 October 2021; in this report the background given is that the offender is the oldest of three siblings. He was then 38 years old and says his parents separated about 10 years ago though his sister says that was 20 years ago. He came to the mid Northcoast either two or four years ago and had spent most of his life before then in Sydney. His income is Centerlink and he lives with his mother. The offender’s only paid work “to date” (which I take to mean ever) was night fill work in Woolworths in 2019, though he mentioned fixing other peoples computers when explaining the offending to the psychologist.

17. The offender completed year 11 in Queensland and then in New South Wales achieved certificates at TAFE including in relation to information technology. He does not have a driver's license. He had a few friends at school. He does not socialise and denied having a girlfriend to date. He sleeps a lot, watches Netflix and plays computer games.

18. The offender has no psychiatric history and an unremarkable medical history. There are no substance abuse issues. As noted above he has no criminal history.

19. At interview the offender presented well though the offender spoke quickly with a stutter. His thought process was logical. He did not present with symptoms of a major mental illness. He presented as an interpersonally fairly low functioning man.

20. The report writer offered the opinion of him being currently functioning on the cusp of low average to borderline range of intelligence. This seems to be based, at least in part, on some fairly general current affairs questions most of which the offender seemed to answer quite well, though he did not know who the Prime Minister was (which may reflect a lack of interest) and included offering that President Trump was “just like our Pauline Hanson“.

21. That said on one measure the offender was in a very low percentile for attention, concentration and working memory. Other testing also placed him in a low band. The offender was able to reason about abstract ideas at age appropriate level.

22. The report writer offered what I consider to be only possible, or potential, differential diagnoses due to her use of the word “query“ in brackets before the suggested diagnosis which was of mild ASD, avoidant personality disorder and social phobia. The psychologist also notes those diagnoses were without the benefit of collateral sources, that is they are based on his own self reporting. I do not find the offender to suffer from these conditions, and nor do I understand the psychologist to be of that view.

23. It is said the offender’s history does not suggest untreated major mental illness. The offending is said to meet the criteria for a paraphilic disorder, most likely pedophilic disorder. He does not meet the criteria for intellectual disability.

24. The report writer was asked to comment on fetal alcohol spectrum disorder. Just why is not clear because there is no suggestion of his mother having an alcohol problem while she was pregnant. The report writer then says “as an adult and indigenous the sentinel facial features of FASD are not a diagnostic guide and often unnoticeable. Based on his background it would not be reasonable to suggest there was evidence he may have sustained the teratogenic effects of prenatal alcohol exposure” (emphasis added). In other words it is not an issue.

25. Adverse to the interests of the offender he maintained denials of the offending or at best made excuses for it in a way that shows he has little if any insight into his offending behavior and also a total or at least significant lack of remorse. In respect of the doll charges he says he purchased a lawful teen/adult doll yet has pleaded guilty to the offence. Just how he explains the child like mouth and vagina for count 2 is not explored. As to having more than 4000 images and videos of child abuse material including of infant females being vaginally raped by adult men he says he was just unlucky that he kept the hard drives from other people whose computers he fixed.

26. Dr McSwiggen was asked as to interventions to assist with rehabilitation. That led to a response of there being a low likelihood of reoffending though Dr McSwiggen acknowledges that the tool used for that assessment has not been cross validated or demonstrated to have stability to allow for the confident application to an individual. I give this evidence little weight for that reason.

27. As for treatment, Dr McSwiggen recommends psychological treatment for deniers. It is suggested the risk to the community can be limited by limiting access to the Internet. Dr McSwiggen considers the offender would be compliant with treatment mandated directives and rules.

28. As to the effect of custody Dr McSwiggen said the offender would be capable of following the rules and would be likely put in custodial protection. Adjusting to custody would be a challenge and an adverse affect on his mental mental health could be expected.

Consideration of subjective case

29. In my view this material shows the offender to be in large part as described by the psychologist. The affidavit material whilst not challenged in my view needs to be viewed guardedly but not to the point of being wholly disregarded. For example the offender does not appear to have had any substantial worklife yet he is described as a hard worker. Based on the psychologists report he is clearly a reclusive and disengaged from the community and with anti social pastimes as shown by the offending. Whilst it would appear that he does have some, with all due respect, what might be termed slowness about him the psychologist report shows that he does not have any cognitive impairment or intellectual disability or mental illness. The report shows him to be at least to some extent aware of events around them by his reference to Pauline Hanson but that is a very sparse basis to make any meaningful assessment.

30. Section 16A of the Crimes Act (Cth) (“CCA”) sets out a range of matters that must be considered (in addition to other matters) in determining the appropriate sentence for Federal offences. The Crown has helpfully made submissions by reference to that section. I have referred above to the nature and circumstances of the offence and considered the objective seriousness of the offending. As noted above the early guilty plea will be reflected by a 25% discount in sentence and the offender’s lack of any criminal history has been noted which despite the nature of the offence in my view is a factor in his favour as his good character did not assist in or enable the offending.

31. The personal circumstances of the offender have been summarised by reference to the psychological report. In all a fairly bleak picture is painted of the offender. He does not seem to have any aspirations and frankly despite the low assessment of his intellectual capacity there are other factual matters that suggest he is able to engage meaningfully beyond what he is currently doing; he completed year 11, he attended TAFE, and he appears to have some worldly awareness.

32. In terms of his character the evidence does suggest that he is helpful in the limited sphere in which he moves. Adverse to the offender is the fact that he seems to have little if any insight and / or remorse. I do not accept the assessment of the psychologist of a low risk of reoffending. In my view it is likely that if he was to continue to live as he has chosen to live, and with scant insight or remorse, that he would continue to offend. The report shows that he has likely some pedophilic condition, something self evident by count 3 in particular.

33. A point made by the Crown which I accept and is not really in dispute is the need for general deterrence. Further in this case given the obvious lack of insight of the offender there is a need for specific deterrence. As already noted above, in relation to count 3 it is this behaviour that contributes to perpetuate abuse of children; without a market there would be no money to be made and the occurrence of the abuse would be markedly less.

34. Adding to the need for general deterrence is a consideration in accordance with section 16(2)(d) of the circumstances of the children involved. R v Clarkson (2011) 32 VR 361 is authority for the proposition permitting the presumption of harm.

35. In terms of the offender's physical and mental condition and background it is argued for the offender that his mental condition was such that there is less need for general deterrence, presumably because the court should find he is less morally culpable. The psychologist’s report is discussed above in my view it does not establish a mental disorder for the reasons there discussed. It is true that and I find, the accused is a person who is reclusive and somewhat socially awkward or perhaps even socially backward. I do accept that he is a low functioning adult male. But there is nothing in the material that suggested that he was any less able to realise that what he was doing was wrong. The report is to be respected for being frank in identifying risk due to his denials which constitutes a minimisation of the offending. I do not find that those denials are based on limited social functioning but rather a lack of insight into just how damaging this behaviour is. In my view this gives a basis for deterrence, both general and specific, not a basis for detracting from that need. At the same time, it shows a need also for rehabilitation. That said, the submission for the offender that his lower level of functioning, even if not causative of the offending, remains a basis for some leniency. In my view that is a valid submission. Whilst it appears that he has disengaged as described above by his own choosing, the fact remains that he is disengaged, albeit he has a well meaning mother and sister in his immediate living circle. I consider that there should be some leniency on this basis.

29. In terms of the prospects of rehabilitation I again refer to the summary of the psychologist’s report above. Section 16A (2AAA) requires the court to take into account the objective of rehabilitation. In my view there is a prospect of rehabilitation if there can be meaningful intervention and appropriate counselling and supervision. These are reasons why in my view there should be a lengthy period of supervision which in turn would reduce the non-parole period (or lessen the period of custody before a recognisance release order (“RRO”) takes effect). At the same time the period in custody needs to reflect the principle of proportionality and the objective seriousness of this offending.

30. The totality principle has application to this case. The following passage is from a recent judgment of R v Higgins (a pseudonym) No.2 [2021] NSWDC 568 (Restricted). The principles were reviewed by RA Hulme J in Hall v R [2021] NSWCCA 220 at [52] et seq. At [54] R v Holder [1983] 3 NSWLR 245 was referred to which makes plain that what is required is for a sentencing judge to evaluate the overall criminality involved in all of the offences and to adjust the aggregate sentences “to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences”. Put perhaps even more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the Court “must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”. At [60] his Honour referred to the well-known passage of Cahyadi v R [2007] NSWCCA 1, where the question was posed as being whether the sentence for one offence can comprehend and reflect the criminality for another offence. Importantly that passage (at [27]) includes the following; “this is so regardless of whether the offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that where the offences are discrete and independent criminal acts the sentence for one offence cannot comprehend the criminality of the other. Similarly where they are part of a single episode of criminality with common factors it is more likely that the sentence for one of the offences will reflect the criminality of both”. I have applied these principles to my ultimate sentence.

The appropriate sentence

38. An offender being sentenced for multiple federal offences may receive an aggregate sentence under s 53A Crimes (Sentencing Procedure) Act 1999 (NSW); see DPP (Cth) v Beattie [2017] NSWCCA 301 at [141]–[146]; Kannis v R [2020] NSWCCA 79 at [10].

39. I propose imposing an aggregate sentence, and will indicate below the indicative sentences, before applying the 25% discount to each sentence, and then determining the aggregate sentence.

40. Before doing so, I note that by section 19AC of the CCA, if the sentence is less than three years the court must set a period for a RRO.

41. The effect of section 20(1)(b)(ii) of the CCA is that where a person is convicted of a federal offence or offences, and at least one is a Commonwealth child sex offence, the court may sentence the person to imprisonment in respect of the offences but direct that the person be released upon the giving of security, after the person has served a specified period of imprisonment calculated in accordance with section 19AF(1). The effect of section 19AF is simply to ensure that the stated pre-release period does not exceed the end date of the sentence. The release can be immediate if there are exceptional circumstances. In my view there are no exceptional circumstances in this case, as based on my consideration of the subjective circumstances of the offender he was a person engaged in the criminal activity the features of which are described above and none of which suggests that the circumstances are exceptional.

42. I note the maximum penalties for each of the three offences have been set out above but are 10 years for the import matter, count 1, 15 years for the child sex doll matter, count 2 and 15 years in respect of the child abuse material, count 3.

43. I will set out below my indicative sentences for each of the offences. I concur with the views of the parties that no other sentence is appropriate other than a term of full-time custody. The critical issue in this case is what total sentence reflects the overall criminality of this offending. The import offence and the child sex doll offence can be seen on one view as a course of conduct and the nature of the conduct relating to the child abuse material is of a similar vein. In terms of seriousness, I consider the child abuse material to be the most egregious and the import matter the least so. I have set out the subjective matters above including the discount for the guilty plea. Having taken all the matters discussed above into account my indicative sentences are as follows:

• Section 233BAB(5) Customs Act (import child sex doll offence): 12 months, and after the 25% discount, 9 months;

• s273A.1 CCC (possess child sex doll): 18 months, and after the 25% discount, 13.5 months;

• s474.22A CCC: (Child abuse material): 21 months, and after the 25% discount, 15 months.

44. There shall be an aggregate term of 24 months. This being less than 3 years it therefore becomes necessary to set a RRO period which in my view in all the circumstances of this case should be 12 months on the conditions that he be of good behaviour for the period of the RRO, and that in that period he attend counselling with a psychologist to address what Dr McSwiggen describes as a likely Paedophilic Disorder. This will give an extended period of supervision to engage the interventions spoken of by Dr McSwiggin. I note there is no statutory ratio for Federal offences but note in any event that by analogy to the state legislation this is not a significant finding of what is referred to in the NSW legislation as “special circumstances” when reduced to what the difference is in terms of months, being approximately 5 months difference. However any lesser sentence of custody than 12 months would not in my view be proportional to the nature of this offending in all the circumstances.

Orders

45. Of the three offences set out at the commencement of these reasons the offender is convicted.

46. Allowing for the 25% discount the indicative sentences have been set out above and I impose an aggregate term of imprisonment allowing for the 1 day in custody of 24 months less one day to date from today 18 November 2021 and expiring on 16 November 2023.

47. I further order that upon the expiry of 12 months from today the offender be released on a recognizance release order on the following conditions:

• That he forfeit the sum of $5000 should he breach the conditions of the RRO, and no surety is required;

• That he be of good behaviour for the period of the RRO;

• That in the period of the RRO he attend counselling with a psychologist to address what Dr McSwiggen describes as a likely Paedophilic Disorder.

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Decision last updated: 19 November 2021