R v Dowling

Category: Sentence

Parties: Rex (Crown)
Michael John Dowling (Offender)

Representation: Mr Scard (ODPP Commonwealth)
Ms Blake (Counsel for the offender)

File Number(s): 2023/292851

Publication restriction: Nil

JUDGMENT

1. Michael John Dowling, you appear for sentence today in relation to two principal offences.

2. The first of those principal offences is possessing child abuse material. This is sequence 4.

3. Sequence 4 involves a contravention of s91H(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 10 years. There is no standard non-parole period.

4. In relation to sequence 4, you have asked the Court to take into account one matter on a Form 1 which I have certified. That matter is sequence 5. Sequence 5 involves possessing bestiality material.

5. The second of those principal offences is using a carriage service to access child abuse material on three or more occasions, involving two or more people. This is sequence 7.

6. Sequence 7 involves a contravention of s474.24A(1) of the Commonwealth Criminal Code. The maximum penalty for that offence is imprisonment for 30 years; and there is a statutory minimum period of imprisonment of 7 years.

7. In relation to sequence 7, you have asked me to take into account one matter on a s16BA certificate. That matter is sequence 6. Sequence 6 involves possessing child abuse material obtained or accessed using a carriage service. I have also certified that certificate.

8. The facts involving all four sequences are contained in an Agreed Statement of Facts which forms part of Exhibit A.

9. Section A of the Agreed Statement of Facts is entitled “Overview” and is in the following terms:

“1. On 14 September 2023,… the Offender, a 63 year old man, was found in possession of 1,049 videos and 48 images constituting child abuse material, saved across three data storage devices (Sequence 4). The Offender was also found in possession of 370 video files constituting bestiality material, saved to two data storage devices (Sequence 5).

2. During a forensic examination of the devices seized from the Offender’s premises, the NSW Police also discovered three screen-recordings of the Offender participating in online “meetings” on Zoom, the purpose of which was the broadcast of images and pre-recorded videos constituting child abuse material to its various participants. Whilst participating in the “meetings”, the Offender and other participants routinely broadcast themselves engaged in acts of masturbation.

3. In one of the three instances, the NSW Police was unable to determine the date of the Offender’s participation in the “meeting” (Sequence 6). The other two meetings occurred on 7 August 2022 and 11 May 2023 ([part of] Sequence 7).

4. The Offender also participated in such a Zoom “meeting” for almost two hours on 20 April 2023, the password to which was: “PNPERV”, being a reference [to] its paedophilic purpose. On this occasion, however, a representative of the Child Exploitation Internet Unit of the NSW Police was also present for part of the “meeting”, after which the Offender’s email and IP addresses were identified amongst the records maintained by Zoom in relation to the “meeting” ([also part of] Sequence 7).”

10. Section B of the Agreed Statement of Facts is entitled “Offending” and gives more detailed particulars of the two principal offences and the Form 1 and s16BA schedule matters. It is not necessary for my purposes today to set out publicly that degraded and degrading material. I do, however, incorporate, by reference, [5] to [14] of that Section.

11. Each of the principal offences falls slightly above the mid-range of objective seriousness for an offence of its type; and each is a very serious example of that type of offending. In coming to those conclusions:

(a) in relation to sequence 4, I have had regard to, and accept, [17] of the outline of the Crown’s submissions on sentence (MFI-3); and (b) in relation to sequence 7, I have had regard to, and accept, [20] of those submissions.

12. The matters on the Form 1 and the s16BA certificate require a meaningful increase in the sentence for the principal offence to which each of them relates.

13. You were arrested on 14 September 2023. Later on the day that you were arrested, you were granted bail.

14. On 28 September 2023, you attempted suicide. In this context, I have had regard to the contents of the note which is incorporated in [17] and [18] of the Agreed Statement of Facts together with the further material set out in Exhibit C (being “Further Agreed Statement of Facts”, dated 6 February 2026).

15. Following your unsuccessful suicide attempt, your general practitioner referred you for treatment to Dr O’Dea, a forensic psychiatrist. You first saw Dr O’Dea for treatment on 7 December 2023.

16. On 23 July 2024, you were committed to this Court for sentence by the Local Court and, ultimately, a sentence hearing had been fixed for 29 May 2025. On the day before that hearing date, however, you attempted again to take your life. The sentence hearing was adjourned to 2 June 2025. On that date, although you had been discharged from hospital, you did not attend Court as you had been advised to do by your lawyers. Instead, you, to use your own words (see Exhibit 3), “went on the run,” planning to commit suicide prior to your anticipated capture. However, before you carried out this intention, you were again arrested by police on 8 July 2025, and you have been held continuously in custody from that date.

17. You did not give sworn oral evidence in the sentence proceedings. Rather, your subjective circumstances were placed before the Court through the following documents:

(a) a report of Dr O’Dea dated 4 December 2024 (part of Exhibit 1); (b) an undated letter from you to the Court (part of Exhibit 1); (c) a Further Agreed Statement of Facts dated 6 February 2026 further addressing your attempted suicide on 28 September 2023 (Exhibit C); (d) a second letter from you to the Court dated 6 February 2026 (Exhibit 3); (e) a letter to the Court from Mr Joseph Kimpton dated 29 November 2024 (part of Exhibit 1); and (f) a letter from Ms Gower dated 28 November 2024 from the Alcohol and Drug Service of St Vincent’s Hospital (part of Exhibit 1).

18. In his report, Dr O’Dea noted that, after your initial consultation with him on 7 December 2023, you had a further 13 consultations up to and including 31 October 2024. When he prepared his report on 4 December 2024, Dr O’Dea had arranged a further consultation with you on 12 December 2024. There is, however, no evidence that you attended that, or any other subsequent, consultation.

19. In his report, Dr O’Dea also noted the following:

(a) “Family history”, which was stable and otherwise unremarkable; (b) “Developmental history” (including educational and employment histories), which was also stable and otherwise unremarkable; (c) “Alcohol and Other Drug history”. In this section, Dr O’Dea set out your history of substantial cannabis and amphetamine abuse and dependence; (d) “General medical history”. In this section, Dr O’Dea noted a history of: substance abuse; Hypothyroidism with thyroidectomy; HIV; retinal damage; bilateral pulmonary embolism; left retinal detachment; and a range of medications. Insofar as your HIV diagnosis is concerned, you have been diagnosed positive for approximately 30 years, but your viral load is currently undetectable; (e) “Forensic history”. In this context, you effectively have no prior criminal convictions of significance; (f) “Index sex offences”; (g) “Psychosexual history”; and (h) “Psychiatric history”

20. Ultimately, Dr O’Dea expressed an opinion under the heading “Psychiatric Diagnosis and Formulation”.

"[49] In addition to Mr Dowling's history of pornography use pointing to at least a paedophilic and bestiality component of his sexuality, I have diagnosed Mr Dowling as suffering a substance use disorder, in particular, amphetamine use disorder and cannabis use disorder, with at least his amphetamine use disorder still active at the time of our initial interviews and through our treatment program.

[50] In addition, history and presentation at our initial interviews was consistent with him suffering mood disorder, that at the time of our initial assessment interviews was an elevated mood likely related to his history of ongoing amphetamine abuse at the time. Whilst his elevated mood may point to a manic episode, it may be better understood as related to his ongoing amphetamine use disorder rather than as part of a bipolar affective disorder.

[51] As is becoming increasingly recognised in clinical settings, the increasing focus on readily available internet pornography by older adult males, as their access to sexual relations in real life reduces, can and does lead to excessive and compulsive internet pornography access for long periods of time with prolonged periods of masturbation, in turn leading to individuals accessing more arousing pornography in order to maintain their initial level of arousal including leading individuals to access more taboo internet child pornography and bestiality. The neural dopo myogenic pathways are increasingly hypothesized and recognised as central in these processes.

[52] This, together with the sexual stimulation and disinhibition of elicit psycho stimulant substances, may help in understanding Mr Dowling's conduct in relation to the index sex offences.

[53] Whilst Mr Dowling has reportedly not been aware of a specific or significant sexual attraction to children or animals in real life, accessing such pornography on a regular basis and masturbating in a group setting to such material together with the generally accepted view in psychiatry that individuals are likely to choose the kind of pornography that corresponds to their sexual interests, would point to a homosexual paedophilic and a bestiality component to Mr Dowling's sexuality and may point to the potential for him meeting the psychiatric diagnostic criteria for paedophilia, sexually attracted to males, not limited to incest, non exclusive type, so called extra familial homosexual paedophilia and bestiality.

[54] That being said, these homosexual, paedophilic and bestiality components of Mr Dowling's sexuality as evidenced by his internet pornography access may be understood as having been unmasked by his internet pornography access and his amphetamine use at the time rather than as a specific and strong pre existing and innate component of his sexual orientation.

[55] Whilst Mr Dowling's internet child and bestiality pornography access would point to homosexual paedophilic and bestiality components to his sexuality, the risk of an adult male who has access to homosexual paedophilic or bestiality pornography, as in Mr Dowling's case, progressing to more so called hands on sex offending against male children or animals in person and via direct physical contact remains unclear and unquantified.

[56] Nevertheless, from a full, psychiatric risk assessment and risk management perspective, this risk would be considered to warrant ongoing psychiatric assessment and treatment and risk management as appropriate".

21. Having made that formulation, Dr O’Dea recorded the psychiatric treatment program you had been on to the date of his report: first, noting that you remain engaged and insightful into homosexual paedophilic and bestiality components of your internet use; and secondly, whilst also exploring your sexuality, the sessions had also focused on reducing and ceasing your illicit substance use, treating your mood disorder, and promoting abstinence from internet pornography access.

22. Finally, under the heading “Proposed ongoing psychiatric treatment program”, Dr O’Dea recorded his intention (as at December 2024) of continuing a treatment program with you initially on a monthly then a three-monthly basis indefinitely. However, as I have already observed, there is no evidence that Dr O’Dea’s intentions were complied with by you.

23. For completeness, the following paragraphs of Dr O’Dea’s report are of some relevance to the current proceedings:

“64. Whilst I’ve not drawn a direct causal relationship between Mr Dowling’s history of substance use disorder and the index sex offences, the therapeutic aim is for Mr Dowling to remain abstinent for amphetamine and cannabis use in the community in the long term, in order to assist in managing his risk of engaging in further sex offending behaviours in the community in the long term.

…

67. Such a community treatment program as described above, is likely to prove the most appropriate and effective intervention in treating Mr Dowling’s sexual problems, substance use disorder and mood disorder, and in managing and minimising Mr Dowling’s risk of engaging in further sex offending behaviours in the community in the long term, and could be successfully continued in the community in the long term without placing the community at undue risk.

68. Furthermore, there are no effective treatment programs in Custody for Mr Dowling’s sexual problems, with a period of incarceration in Custody not likely to significantly alter his treatment needs or risk profile on his subsequent release from Custody into the community.”

24. For sexual offending against children, the predominant sentencing consideration is general deterrence and there is no other consideration which detracts from the full application of that consideration in these proceedings.

25. Similarly, specific deterrence is also fully engaged.

26. Making an assessment of your prospects of rehabilitation is somewhat problematic given that the treatment you were receiving from Dr O’Dea, and which seemed to be producing meaningful results, was discontinued in the circumstances I have already referred to. In this context, I note the contents of [68] of Dr O’Dea’s report which I have earlier referred to.

27. Further in the context of your rehabilitation, I have also noted the report from Ms Gower of the Alcohol and Drug Service of St Vincent’s Hospital which, as with Dr O’Dea, showed positive response to treatment. Similarly, your treatment with Ms Gower has also not proceeded after 15 November 2024.

28. Whilst the type of treatment being offered by Dr O’Dea is not available in the custodial setting, that being offered by Ms Gower is more readily available to inmates. My assessment of your prospects of rehabilitation would have been, if those two streams of treatment were made available, cautiously optimistic. However, given that Dr O’Dea’s form of treatment is unlikely to be received by you in custody, my ultimate assessment is that your prospects of rehabilitation are guarded.

29. Notwithstanding that conclusion, in relation to sequence 7, I have had regard to s16A(2AAA) of the Commonwealth Criminal Code which mandates the objective of rehabilitating an offender must also be taken into account.

30. For each of sequences 4 and 7 (even without taking into account the matters on the Form 1 and the s16BA certificate), no sentence other than imprisonment is appropriate.

31. Insofar as sequence 7 is concerned, it is not the least worst category of case for which a sentence of imprisonment is required. This finding has relevance to the manner in which the statutory provisions concerning the minimum term in this case are to be applied.

32. Those sentences of imprisonment are as follows.

33. In relation to sequence 4 (and taking into account sequence 5 on the Form 1), except for your plea of guilty, the term of the sentence would have been imprisonment for 4 years 6 months. After a discount of 25 per cent for your early plea of guilty, the term of imprisonment is 3 years 4 months.

34. The start date of that term of imprisonment (which will be a fixed term of imprisonment) is backdated from today to take into account the time you have been on remand following the revocation of your bail on 8 July 2025. It will, therefore, commence on 8 July 2025.

35. The fixed term of imprisonment is, therefore, 3 years 4 months to date from 8 July 2025 and which will expire on 7 November 2028.

36. In relation to sequence 7 (and taking into account sequence 6 on the section 16BA certificate), except for your plea of guilty, the term of the sentence would have been imprisonment for 9 years. After a discount of 25 per cent for your early plea of guilty, the term of imprisonment is 6 years 9 months.

37. In this context, I fix a non-parole period of 4 years to date from 8 October 2025 and which will expire on 7 October 2029. I fix a balance of 2 years 9 months to date from 8 October 2029 and which will expire on 7 July 2032.

38. In fixing the non-parole period for sequence 7, I have had particular regard to your age and health (both physical and substance use disorder) and the fact that this is your first time in custody – and the impact of those considerations on how the custodial setting will impact upon you as well as the need to encourage your rehabilitation by a meaningful period on parole.

39. I order, by consent, that the following items seized from the offender be forfeited to the Crown:

(a) The USB drive, being exhibit X0004784773; (b) The two external hard drives being exhibit number X0004787778; and

(c) An ASUS laptop computer being exhibit number X0004784779.

40. I make a child protection order and offender registration order for 15 years in relation to sequences 4 and 7, both being class 2 offences.

Amendments

26 March 2026

The word "(Offender)" added to cover sheet after "Dowling".