Solicitors:
Kells (for the offender)
Ms N Olender (for the Director of Public Prosecutions)
File Number(s): 2019/00348266
[2]
SENTENCE
When he was before the Local Court Robert Garcia entered pleas of guilty to two serious offences,
1. Possess child abuse material, s 91H(2) Crimes Act 1900; maximum penalty ten years' imprisonment, and
2. Possess a child-like sex doll, s 273A.1 Criminal Code 1995 Commonwealth; maximum penalty 15 years' imprisonment.
He also asked that when I sentence him for the s 91H(2) offence I take into account another s 91H offence on a Criminal Procedure Act 1986 Form 1, and I will do so.
There are agreed facts before the Court. They reveal that in 2019 the offender, now 52, would regularly contact the Police Assistance Line and ask for a transfer to Lifeline. The material before me establishes that he had what is referred to by psychologists as a suicidal ideation, particularly when heavily intoxicated. The material before me indicates that he was heavily intoxicated most evenings.
Responding to a Triple-0 call on 5 November 2019 police went to the offender's home; no-one was there. The fire brigade was also on the scene. Given the nature of the call out and their genuine and justifiable concern, entry to the home was forced. The unit was empty but on the floor was a mobile phone. It was opened in an attempt to identify the whereabouts of the person who had called Triple-0. The police saw immediately that child abuse images had been stored on the phone. A crime scene was declared.
A subsequent investigation revealed two other mobile phones that contained child abuse material, including videos of the offender engaged in simulated intercourse with a doll. Other items were also seized. The mobile phones were later forensically downloaded. A large number of images categorised as child abuse material was found.
A further search resulted in the finding of a child's plastic doll, 65 centimetres in length. The doll had been altered. A hole had been cut in the crotch area. Nearby police found items which had been converted in a crude fashion to be inserted into the hole so as to imitate a vagina.
While the police were at the location the offender returned home. He was arrested. He was intoxicated. The photographs of his home indicate that he had been drinking heavily that night.
Initially the offender told police that he was an artist and that there was nothing wrong with his possession of the material. But when asked about the doll he made admissions that he used it for the purposes of sexual intercourse. At first he said that what he was doing was normal and that there was there nothing wrong with him. He then complained of chest pains and was taken to hospital. There are photographs of the doll exhibited. They will be kept in a sealed envelope as the photographs of themselves are at law child abuse material.
It would appear from all the material referred to in the proceedings that in the early hours of the morning, after drinking heavily, the offender would access child abuse material and engage in the acts with the doll, which were depicted on the video.
The material relating to the s 91H (2) Crimes Act 1900 offence for sentence has been classified using the INTERPOL Baseline classification: MFI 3. The small number of classifications available on that scale rarely enables a full appreciation of the material to be had, without viewing the material. Here however it is accepted by all involved that a viewing was not necessary.
There were three phones containing child abuse material. I note the nature and content of the material, including the age of children and the gravity of the sexual activity portrayed, which here, overall was at the lower end of the sort of matters that generally come before this Court. There were a large number of Category 1 images and that fact is of some significance. Only a small number of the grosser images were those commonly associated with many s 91H(2) prosecutions. In summary:
1. Phone 1 - 2,479 images of children in sexual poses and of child-like sex dolls.
2. Phone 2 - over 5,000 images of young female children in swim or dancewear.
3. Phone 3 - over 3,000 images of child sex dolls, naked children with naked adults described by the offender as nudist-type shots. Three images in particular were highlighted;
1. a naked female baby showing genitals,
2. a sleeping child under 12 who had obviously been grossly indecently assaulted.
3. a child aged between 12 and 14 performing fellatio.
Actual children were used in the creation of much of the material. So far as the vast bulk of the material, they do not depict any cruelty or physical harm being caused to a child. But their possession by the offender was grossly invasive of the children's rights. The offender's had the material for his own use. There is no proximity of this offender to those responsible for bringing the material into existence other than the matter on the Form. There was no planning, organisation, sophistication or deception employed by the offender in acquiring or storing the material. What he did was literally and figuratively fairly crude; many of the images might be, in another context, regarded as relatively benign. There seems to be no risk of any of the material being seen or acquired by vulnerable persons, particularly children. I have had reference in matters categories to R v Hutchinson [2018] NSWCCA 152 and Minehan v R [2010] NSWCCA 140.
The videos on the Form 1 matter involved the offender's use of the doll. They were technically child abuse material, but they were clearly for the offender's own private use and unlikely to ever be disseminated given their nature.
[3]
Objective seriousness - the doll
Section 273 was introduced into the Criminal Code 1995 C'th in September 2019 by the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 C'th. The relevant elements of the offence include; the possession of a doll, which resembles a person under the age of 18 years that a reasonable person would consider likely is intended to be used by a person to simulate sexual intercourse. The maximum penalty fixed by Parliament is 15 years' imprisonment.
In his written submissions Mr Hart, who appears for the offender, extracted the portion of the Second Reading speech that referred to the section:
"The bill strengthens the Commonwealth framework of offences to ensure a comprehensive, technology-neutral and future-focused response to more forms of child abuse material. In particular, the bill will clarify the law to ensure that the abhorrent new trend of child-like sex dolls, used to simulate sexual intercourse with children, is clearly and robustly stamped out in Australia".
What makes crimes such as these callous is not the actual exploitation or abuse of a child, it is callous because each time the item is used the offender is reminded of and confronted with the obvious evidence that his mind is dwelling on the abuse of a child.
I note that
1. The doll was altered to become a masturbation toy and it was obviously used.
2. The doll was a toy and not at all life-like.
3. It and had been crudely altered by the addition of a crudely fashioned vagina.
4. It was only used for the offender's private gratification, something he confirmed in frank and, I accept, honest evidence on oath before me on 10 July 2020.
5. There is no link in the evidence before me with any desire to perform such acts on a real child.
6. The item was not supporting any commercial market for sex dolls
That said, I have to have regard to the purposes for which the provision was inserted into the Criminal Code Act 1995 C'th and, in particular, that the maximum penalty is of a severity that indicates that Parliament does not distinguish between using such dolls for fantasy acts and many of the acts involving indecent or other actions against real children. This is not a case of simple comparison of maximum penalties.
Nevertheless, when a court has to consider an appropriate sentence there are a number of factors that have to be taken into account. The first and most important is that any sentence imposed by a court must be of a severity appropriate in all the circumstances of the offence. The objective seriousness of the particular offending must be determined in the light of the entirety of the facts and those circumstances.
Any sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of all its objective circumstances; Hoare v The Queen (1989) 167 CLR 348 at 354.
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. Parliament criminalised possession of these objects, it would appear, in an attempt to shield real children in the community from exploitation and abuse: Holland v R [2005] WASCA 140: (2005) 154 A Crim R.
Here however, I cannot regard the possession and admitted, and proved purpose, for which this doll was altered crudely, as being as serious an act as those that involve actual children, no matter how abhorrent Parliament regards this practice. That said, 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 now, I accept, this offender must understand the wrongness of this type of crime.
[4]
Maximum Penalty
I have to pay careful attention to the maximum penalties fixed by Parliament. Such attention is always required, particularly so far as the 273A offence when it has been so recently fixed. Legislatures do not enact a maximum as mere formalities. The maximum of 15 years is a signal that general deterrence has considerable currency in the eyes of Parliament and the community and content must be given to it as one sentencing measure to be considered, along with all others. They also invite a comparison between the instant case and other possible examples of the offence. That said, it is not appropriate just to look first to the maximum penalty and then proceed by way of making proportional deductions: Markarian v The Queen (2005) 228 CLR 357 at [30] and [31].
[5]
Form 1
The matter on the Form 1 is itself serious as it is a record for personal use of his use of the doll for his later gratification. It will be taken into account when I determine the appropriate penalty for the 91H(2) offence, but I do not in any sense impose a sentence for that offence. It operates to increase the sentence that would otherwise be appropriate as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian. The increase recognises the need for personal deterrence and retribution for the crime for sentence; Attorney General's Application No. 1 (2002) 56 NSWLR 146.
[6]
Other relevant factors
The offender has one matter for dishonesty dating back to 1998. There are a number of driving offences. There is also a reference to a Children's Court matter, which is inadmissible, and I have had no regard to it: s 15 Children (Criminal Proceedings) Act 1987. I regard the offender, and treat him, as a first offender. That said, particularly in offences involving child pornography they are frequently committed by persons of good character and since general deterrence is necessarily important it is legitimate for a court to give less weight to good character as a mitigating factor than for some other offences: Mouscas v R [2008] NSWCCA 181 at [37].
[7]
Subjective case
I have the benefit of the Sentence Assessment Report (SAR). It is clear since the preparation of that report that the offender has had a chance to think, calmly, rationally and unaffected by alcohol, about the seriousness of his crimes. The Report notes that supervision plans can be put in place which would enable him to continue psychological intervention and build up some significant skills in caring for himself and leading a pro-social lifestyle.
There is a psychological report annexed to the SAR and while it concluded at the time of interview that he displayed a lack of understanding regarding the impact of his offending. His evidence before me last Friday allowed me to assess him as someone who is capable of, and presently, if belatedly, undergoing real self-analysis.
It would appear that there are no formal programs available to him either in custody or in the community, but t he would benefit from psychological treatment to deal with; intimacy deficits, problems with general self-regulation and what are called in the report deviant sexual interests. If he engages in the proposed plan on release I am reasonably confident that should he refrain from using alcohol it is unlikely he will offend.
The offender provided me with a letter which I accept is heartfelt. He also gave evidence.
I believe that his self-appraisal in the witness box was honest; more honest than his disclosures to those preparing the SAR. It is clear from all the material that he did not deal well with; loss, significant loss, and subsequent grief and separation from his family. It appears that alcohol took over his life and although he was able to maintain work for many years, he has not been well. He regularly calls Triple‑0 and he has had regular mental health admissions into hospital for treatment.
He has, I accept, been sober since his arrest and he now accepts and acknowledges his acts were perverted. I am prepared to accept that while sober he has no continuing attraction to children, or at least if he has that attraction he is not prepared to act upon it. It is clear, however, that he will need the assistance to which I have already referred to ensure that whatever deviant interests he has they are kept in check.
There is a Mental Health Care Plan in place and he has been adhering to it. It would appear that the items he accessed or used were accessed late at night, after heavy drinking. He is developing an understanding of himself and his alcoholism. He has expressed appropriate regret for himself and for his family, and remorse for his crimes.
His sister gave evidence. Her evidence allowed for a greater appreciation of the extent of Garcia's alcohol addiction and its impact on him. It would appear at the time he was simply too drunk to realise the significant damage that was being done to him and his relationships. He has strong family support as referenced by the other material before me, and that prosocial support is important to his rehabilitation and restoration to normal community life.
It is also clear that he is particularly vulnerable as a first offender, with issues relating to intoxication and other untreated and presently untreatable matters deriving from grief and low self-esteem, and suicidal ideation. There is a risk that every day in custody will operate to increase potential for harm rather than ameliorate it.
I have had reference to the material from Dr Cugati, Dr Magid, Dr Alkersh, the Mental Health Care Plan and the New South Wales Ambulance reports which were provided to me.
[8]
Alcohol use
It appears that Garcia's interest in young children and his use of the doll all seem to have occurred at a time when he was drinking heavily. That a person commits offences while intoxicated, as he appears to have been for most of the period of the offending and for the years prior to his arrest, can never excuse crimes, let alone crimes such as this. The fact of his alcohol addiction and its consequences and how it came about and what is to be done and is being done about it are, however, factors that are relevant to sentencing. It also helps explain how he came to think that what he was doing was somehow innocent of crime. It is also relevant to assessing his prospects for the future and help me understand his state of mind and his capacity, or lack of it, to exercise sound judgment at the time, and his capacity for rehabilitation: Henry v R (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
[9]
Extra curial punishment
Not surprisingly Garcia's arrest and the nature of the crime involving the doll has attracted publicity in the local area. He lost his job as a consequence although, as his sister frankly acknowledges, his employer, a family member, was looking for an excuse to sack him given the impact of his alcohol use on his employment. He will, I am sure, have problems securing work in the future. That is almost axiomatic when someone is convicted of offences such as this, matters I have to consider.
[10]
Guidance
Every offender and every offence requires individualised treatment. I take guidance from the maximum penalties and the authorities which indicate, particularly for offences relating to child abuse images and the like, that matters going to general deterrence require sentences of appropriate severity.
I have had regard so far as other decisions of the Court in relation to the 91H Crimes Act 1900. This appears to be the first time that a judge has been asked to consider s 273A Criminal Code 1995.
I have regard, of course, to the purposes of sentencing set out in both s 3A Crimes (Sentencing Procedure) Act and s 16A of the Crimes Act 1914. Importantly both purposes provisions both include the deterrence of this offender and others from committing similar crimes, and a proper recognition of the harm done to the community by the commission of such offences. I have also had regard, given the maximum penalty and the nature of the doll offence, to s 17A of the Crimes Act and s 5 of the Crimes (Sentencing Procedure) Act so far as the other offences are concerned.
[11]
Submissions
Mr Hart provided comprehensive written and oral submissions. Ms Olender, solicitor for the Director of Public Prosecutions, has also had an opportunity of responding. I hope that this judgment does justice to those submissions.
[12]
Structure
So far as the structure of the sentence is concerned there will be reduction in the otherwise appropriate sentences of 25% to reflect the utilitarian value of the pleas of guilty. The pleas have other benefits which must be synthesised and I trust I have done so.
It appears the offender has used his time on remand to his advantage.
Special circumstances will be found reflecting the matters to which I have earlier referred. The sooner Mr Garcia is released to the community the sooner he can commence the process going towards his rehabilitation.
In finding special circumstances and a significant finding of special circumstances I am mindful of the requirement that the minimum period for which the offender should be imprisoned must properly reflect the gravity of his offences and the other purposes of sentencing. It is also important to note that in cases such as this, but in most cases as well, those who receive parole supervision on release are less likely to commit new offences and less likely to commit more serious offences than those who are released unsupervised.
Garcia needs to keep up his prosocial contacts. I am aware that personal visits during the present pandemic are not allowed and will be a burden on him and his family. I am aware he when admitted to gaol will first be placed in quarantine. As the evidence in another matter today indicated, the pandemic has led to more lockdowns of prisoners in their cells who cannot determine their own self-isolation regimes. If COVID-19 enters the gaol prisoners such as Garcia, who for the State offence, do not qualify for early release, and for whom the Commonwealth has made no provisions, will suffer more so than those who do qualify for early release to parole.
I have to merge sentences for both State and Federal offences. The sentences here should be partly cumulative and an adjustment of the appropriate ratios is another reason for finding of special circumstances in the State offence. It is another reason why a significant proportion of the Commonwealth offence should be spent subject to supervision in the community.
There must be some accumulation as there should be appropriate and just punishment where there are multiple offences. The aggregation of both sentences must be just and an appropriate measure of the total criminality involved.
[13]
Synthesis
There is a paramount public interest in promoting the protection of children. Courts do not underestimate the actual and potential harm done to children by exploitation for sexual purposes or being seen as sexual objects.
So far as images are concerned even otherwise benign images of a young child, such as those engaged in dance or play, can, if inappropriately used, perpetuate the harm as they were not, as here, viewed with benign intent. The harm and potential for harm is exacerbated by a child knowing that otherwise innocent images are being circulated on the internet and used for sexual purposes by men such as Garcia.
Here I am prepared to accept that the images of actual sexual contact with children were slight. But the problem of child pornography is an international one given the prevalence and ready availability of material, involving children, on the internet. It is a recognised principle that general deterrence must be of paramount consideration in sentencing. Those who make up the market for such products cannot escape responsibility for the exploitation of children involved.
So far as the doll is concerned, 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. Although I am confident that if Garcia remains alcohol free he will not reoffend others must understand how serious these crimes are.
The doll after it was altered was no longer a toy. It was altered so it could be used and it was so used. As was intended it objectified children, all children, as sexual playthings.
Protection of children matters merit severe punishment. Proper sentences imposed to mark this Court's view of the seriousness of the crime and to let other wrongdoers know the retribution that will fall on them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205. Retribution is a notion that reflects the community's expectation the offender will suffer punishment and that particular offences will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267.
That said, relative to the commission of other child abuse material offences the objective seriousness of this matter was significantly less than that regularly put before this Court. So far as the doll is concerned the crude nature of the alterations and the private rationale for its possession and the other subjective matters to which I have referred require a sentence that would ordinarily be regarded as at the bottom of the range be reference to the maximum penalty.
[14]
Orders
The formal orders of the Court are in relation to each matter you are convicted.
In relation to the Possess child abuse material (State offence) and taking into account these findings, including matters on the Form 1, there will be a non-parole period of 11 months which will date from today, 13 July 2020. You will be eligible for parole on the State offence on 12 June 2021. There will be a parole period of 11 months which will expire on 12 May that is a sentence of one year and ten months with a 50% finding of special circumstances. The total sentence therefore is 22 months comprising the non-parole period and the balance of the sentence.
In relation to the Possess child-like sex doll or other object (Commonwealth offence) you are convicted and sentenced to a term of imprisonment of one year and six months. That sentence is to commence on 13 January 2021, that is six months after the commencement of the State offence, and expire on 12 July 2022. I direct that you be released at the expiration of six months of that sentence, that is on 12 July 2021, upon you entering into a recognisance to be of good behaviour for a period of 2 years, pursuant to s 21B Crimes Act, yourself in the sum of $400 with the following conditions, that you report within seven days of release to Community Corrections, that you obey all directions of that service for as long as they deem necessary, particularly conditions with regard to psychological treatment and compliance with a mental health care plan.
Leave is granted to apply in chambers for forfeiture orders.
Community Corrections - please note Mr Garcia has had medical material put before me indicating that he may be a suicide risk. That is a bit out of date because he has not been drinking for the last six months, but could you please make a notation on his file.
Mr Garcia - The effect of my order is that you spend 12 months in custody then released. You will then be on a bond to be of good behaviour and comply with Community Corrections directions for a period of two years. You could be sentenced to a further term in custody should you breach that. You will also be placed on a sex offender register. That placement on the sex offender register is not a matter that I can take into account, and I have not taken into account, but you need to know that if you breach the terms and conditions which will be placed upon you with regard generally to access to the internet and other matters designed to restrict your behaviour in the community you could face breach not only of the bond that is placed upon you, but commit a separate crime which could see you back in gaol.
If you have any personal items that you do not want taken into custody give them to your solicitor. Please stay in the dock while you say goodbye to your sisters. Please do not leave the dock or have any personal contact with anything other than your solicitor to hand over any material that you may have in your possession. Are you okay with that, Corrections?
[15]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 September 2020