The Queen v Miao

Case [2016] NSWDC 181


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Miao [2016] NSWDC 181
Hearing dates:17th August 2016
Date of orders: 19 August 2016
Decision date: 19 August 2016
Jurisdiction:Criminal
Before: Berman SC DCJ
Decision:

Sentenced to an overall term of imprisonment consisting of a non-parole period of 1 year 3 months and a head sentence of 2 years and 3 months.

Catchwords: CRIMINAL LAW – Sentence- Form 1 – Commonwealth and State offences – Use a carriage service to access child pornography – Possessing child abuse material - Difference between disgusting behaviour and criminal behaviour - Child sex doll
Cases Cited: Vincenzo Jon Fedele v R [2015] NSWCCA 286
Category:Sentence
Parties: The Crown
Zhiguo Miao
Representation:

Counsel:
Mr McGrath – Crown
Ms S Hall - Offender

  Solicitors:
Director of Public Prosecutions
Benjamin and Leonardo Criminal Defence Lawyers
File Number(s):2014/187114; 2013/231791

SENTENCE

  1. This Court is not a Court of morals. Not all behaviour which is strange, or offensive, or even disgusting is criminal and sentencing judges have to be careful not to allow a sense of disgust to lead to an inappropriately severe sentence being imposed upon an offender. What is required is that the judge evaluate the objective gravity of an offender’s conduct by considering well accepted factors which include of course the harm that an offender’s conduct cause to the victims of it. I have begun these remarks on sentence this way because of the disturbing nature of one aspect of this offender’s criminal behaviour.

  2. There is apparently at least one factory operating overseas which produces “child sex dolls” for sale to the public. These are anatomically correct mannequins made of silicon. The offender decided that he would like to buy such an object. He contacted the Australian agent for the company which sold the sex dolls and asked whether the 132cm child doll, with sexual function, was available in Australia. The agent, a man called James Stanley Friess, replied the same day by telling the offender that

“the 132 cm doll is sold as a non- sex doll. Although not illegal in Australia, it is delivered with a blank plug. The factory will send you the vagina insert as a separate delivery for an additional $70”.

  1. A couple of days later the offender ordered the doll specifying a number of features of the doll he would like, and then in a later email asked that the vagina insert is shipped separately. He paid about $4000 Australian dollars. Two packages were thus sent to the offender from somewhere overseas. The first was detected by the Australian Customs and Border Protection Service. It contained the head of the doll and the silicon vaginal insert. Those items were seized by police and never delivered to the offender, however the second package which contained the child mannequin body was delivered. Police later went to the accused’s premises they executed a search warrant and discovered a number of items which have led to the offender being…

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Details
AGLC
The Queen v Miao [2016] NSWDC 181
Case
[2016] NSWDC 181
Decision Date

CaseChat Overview and Summary

The defendant, Miao, was convicted of using a carriage service to access child pornography and possessing child abuse material. The case was heard and determined in the Supreme Court of Victoria. The primary issue for the court was to determine an appropriate sentence for Miao, given the gravity of the offences committed.

In assessing the appropriate sentence, the court considered the nature and circumstances of the offences, the need for deterrence, and the potential for rehabilitation. The court noted the distinction between what is considered disgusting behaviour and what constitutes criminal behaviour. It was held that Miao’s actions, while abhorrent, were not of such a serious nature as to warrant a custodial sentence of the highest order. The court found that Miao’s possession of a child sex doll, while concerning, did not elevate the severity of the sentence.

After weighing the relevant factors, the court sentenced Miao to an overall term of imprisonment. The sentence consisted of a non-parole period of 1 year and 3 months, followed by a head sentence of 2 years and 3 months. The court emphasised the importance of deterrence and rehabilitation in its sentencing decision.

The court ordered that Miao be imprisoned for the specified term, with the non-parole period set at 1 year and 3 months.

Orders

Orders of the court

Sentenced to an overall term of imprisonment consisting of a non-parole period of 1 year 3 months and a head sentence of 2 years and 3 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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