CDPP v Michael Patrick LE GAY BRERETON

OBJECTIVE SERIOUSNESS

1. Section 273A was introduced into the Criminal Code 1995 (Cth) in September 2019 by the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth). According to the explanatory memorandum accompanying the introduction of the Bill into Federal Parliament, the new offence was introduced to minimize the likelihood that child-like sex dolls might increase the risk of harm to real children. Criminological research was cited as authority for the propositions that the use of child-like sex dolls may desensitise users from the potential harm that child abuse causes; the sale of child-like sex dolls potentially results in the risk of children being objectified as sexual beings; and child-like sex dolls could be used to groom children for sex.
2. In R v Hutchinson [2018] NSWCCA 152 at [45], the Court provided a revised list of the non-exhaustive list of factors that may be relevant to an assessment of the objective seriousness of offences concerning child abuse material. The earlier stated findings of fact concerning the appearance of the doll and its location also inform the assessment of the objective seriousness of the offending in the present case.
3. At 142 to 143 cm (or 4 foot 8 inches) tall, the doll is certainly not the height of an infant or a child aged under 10 years of age. The doll's developed breasts, female genitalia and overall appearance is more suggestive of a female child between the ages of 15 and 18 years rather than between 10 and 14 years. That the doll has a vaginal cavity, and a vulva indicates that the doll was intended to be used by a person to simulate sexual intercourse.
4. At the time of seizure, the doll was clothed in what is described as a slip, or shift-type, sleeveless dress. The doll had joggers on and a wig with a hair clip in the hair. It is a ribboned hair clip with the Disney character "Ana" from the animated film Frozen, printed on it. The dress and joggers can be worn by any age of woman. However, the Disney hair clip, while not being exclusively associated with children, it adds to the resemblance of this doll being under the age of 18 because it is more likely to be worn by a child.
5. Whilst the room in which the doll was found in by police was deliberately concealed. However, this matter can be taken as neutral because one can reasonably conclude that the offender may very well have been embarrassed by having such an item in the open, given the stigma that might be associated with possessing a sex doll, regardless of whether he thought it resembled a child or not.
6. The evidence falls short of establishing whether the doll was obtained by the offender and/or whether it was purchased through a commercial marketplace.
7. There is no evidence from which it could be inferred that the accused had any desire to perform sexual acts upon a real child.
8. All things considered, the objective seriousness of the offence is devoid of aggravating factors. Equally, the seriousness of the offence is not mitigated by any objective factors.

THE OFFENDER

1. The Offender was born in 1969 and was 54 years old at the time he committed this offence. He has a history of criminal convictions for offences of larceny, possessing, cultivating and supplying a prohibited drug.
2. The offender spent some 6 months in pre-sentence custody. He been on bail since 8 December 2023, with conditions that included a strict curfew. Whilst that pre-sentence custody was not solely referrable to the index offence, it did result from the prohibited drugs and the child-like sex doll that were both located by the police when they searched the offender's Kings Park warehouse unit on 7 June 2023. I am unable to apportion the weight given to the index offence from the drug offences in the initial decision to refuse bail.
3. Tendered in the offender's case on the hearing of the plea in mitigation, are several letters of support. I have read and considered each of those letters of support. They each paint a picture of the offender as a person of good character who continues to have the support of family and friends.
4. The psychiatrist Dr Ben Teoh, refers to the offender having consulted him for his attention deficit hyperactivity disorder since the beginning of 2017.

Moral Culpability

1. The offender's record of previous convictions indicates that the index offending is an uncharacteristic aberration.

Approach to Sentencing

1. As with all Federal offences, sentencing in accordance with Part 1B of the Crimes Act 1914 (Cth), is required. That approach includes taking into account the matters listed in s 16A(2) that are relevant and known to the Court. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles also apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].
2. I have had regard to the considered submissions of the parties, including the relevance of the particular principles relevant to sentencing offenders who have dealt with child abuse material other that sex-dolls.
3. The Crown submits that that the principles relevant to the sentencing of offences involving child pornography and child abuse material are equally applicable to offending involving the possession of child sex dolls. I have already referred to non-exhaustive list of factors that may be relevant to an assessment of the objective seriousness of offences concerning child abuse material set out in R v Hutchinson [2018] NSWCCA 152 at [45].
4. In the Crown's submission, the first principle relevant to sentencing offenders who have dealt with child abuse material is said to be that unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted. Several decisions of intermediate courts of appeal from Victoria, NSW and Western Australia are cited as authority for that principle. The case of R v Booth [2009] NSWCCA 89 was a successful Crown appeal against the imposition of as good behaviour bond for the possession of multiple images and videos of naked young boys, some aged under the age of 10 years and some engaged in acts of sexual intercourse. The passage cited by the Crown from that case (at [48]) is essentially the statement by Simpson J that her Honour was, "persuaded that the sentence imposed was manifestly inadequate. No penalty other than a term of full time custody is sufficient to meet sentencing needs in this case".
5. The most recent of those cases relied upon by the Crown is CDPP v Garside [2016] VSCA 74, another Crown appeal. At first instance the offender Garside was sentenced to a community corrections order for 4 years for using a carriage service to access child pornography. On appeal, the majority said, "The respondent's offending here was objectively serious, involving as it did thousands of images, some including infant children and most of it involving close up images of children exposing their genitals. The offending specified in the indictment continued over a protracted period and as the respondent admitted to investigators, the offending was not an isolated period of offending. "The failure to impose an immediate and substantial period of imprisonment was not in conformity with the prevailing sentencing practice. Courts throughout Australia have emphasised the need for substantial penalties with general deterrence and denunciation being paramount considerations. When regard is had to the nature and circumstances of the offending, a CCO was not, in our opinion, a disposition that was reasonably open."
6. These particular cases involving child abuse material illustrate the point that each such case must be determined on its own facts.
7. R v Garcia [2020] NSWDC 553 is a sentencing decision by Judge Haesler SC. The offender Garcia pleaded guilty and was sentenced to imprisonment for one year and six months with a non-parole period of 6 months. The child-like sex doll in question had been altered by the addition of a crudely fashioned vagina to be used as a masturbation device. The offender Garcia testified on his plea in mitigation that he had used the doll for his private sexual gratification. There was no established link in the evidence that the offender Garcia desired to perform such sexual acts on a real child.
8. I respectfully adopt the observations of Judge Haesler SC: [20] The clear policy of Parliament to criminalise possession of sexual fantasy dolls intended to be used to simulate sexual intercourse is directed at the objectification of young children. [ … ] fantasised sexual intercourse with children and the possession of an item such as this child-like sex doll, and its use, produces a distorted view of reality in which sex with children is somehow seen as appropriate. The community and the legislature and the Courts and … this offender must understand the wrongness of this type of crime. [51] … to think and act as if sex with children is somehow a norm perpetuates abuse and criminal attitudes towards children. Our community has made it clear that such acts must be punished.

Consideration

1. The maximum penalty fixed by Parliament is 15 years' imprisonment. It provides authoritative guidance by the Legislature, as to the relative seriousness of the instant offence and other crimes in the criminal calendar. Careful attention to the maximum penalty is further required, because it invites comparison between the particular case before the Court and the worst category of case, as that concept was understood, prior to the High Court's decision in The Queen v Killick [2016] 259 CLR 256.
2. I have had regard to the purposes of sentencing in determining a sentence that is of a severity appropriate in all the circumstances. In so doing, I take into account the need to ensure adequate punishment for the offence and consider the objective seriousness of the offence and the moral culpability of the offender.
3. To my mind, denunciation and general deterrence loom large in the present case. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate. In reaching that conclusion, I have reminded myself of the High Court's consideration of suspended sentences of imprisonment in Dinsdale v R [2000] HCA 54; 202 CLR 321.
4. The family support enjoyed by the offender, his adherence to receiving psychiatric assistance and his compliance with onerous bail conditions for over a year, justifies my conclusion that the offender's prospects for rehabilitation are good. In the long term, the best way to protect the community is to bolster those rehabilitative prospects.
5. The offender is to be sentenced for a defined Commonwealth child sex offence: s.3, Crimes Act 1914 (Cth) Section 20 of the Crimes Act 1914 sets out the available sentencing options. Relevantly, it states in sub-section (1)(b) that where a person is convicted of a Commonwealth child sex offence, the sentencing court may, if it thinks fit, sentence the person to imprisonment but direct that the offender person is released, upon giving security. If the court is satisfied that there are exceptional circumstances, the offender may be released immediately. If the sentencing court is not satisfied that there are exceptional circumstances, the offender may be released after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1).

Orders 1. The offender Michael Patrick LE GAY BRERETON is convicted. 2. I impose a term of imprisonment of 2 years to date from 5 September 2024 and expiring on 4 September 2026. 3. The offender is to be released forthwith upon entering into a recognisance in the sum of $1,000 to be of good behaviour for 1 year and 6 months. The further conditions of the recognisance are: 1. the offender accepts supervision by an officer of Community Corrections; 2. the offender obeys all reasonable directions from Community Corrections; 3. the offender is to undertake such treatment or rehabilitation program as reasonably directed by Community Corrections. 1. If the offender fails to comply with the conditions of the recognisance release order, further action may be taken against him. This may require the offender to return to Court. 2. I order the forfeiture of the child-like sex doll that was tendered in evidence by the Crown at trial. 3. I refuse the prosecutor's application for an order under s 3D of the Child Protection (Offenders Registration) Act 2000 (NSW). The enquiry regarding the risk the offender poses to the lives or sexual safety of one or more children, or of children generally under s 3D(2) is constrained by s 3AA. Generally, a conclusion about the existence of a risk should be based on something stronger than a police officer's or prosecutor's speculation or suspicion: O'Neill v Commissioner of Police [2020] NSWSC 1805 at [12]. In the present case, there is no evidence, direct or indirect, that satisfied this Court that the offender poses a risk to the lives or sexual safety of one or more children, or of children generally.

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