R v Munday

District Court of NSW|2021-11-10

Judgment

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.

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.
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

The offender's subjective case

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.
The offender has no criminal history.
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.
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.
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.
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.
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.
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".
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.
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.
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.
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.
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.
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.
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.
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

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.
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.
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.
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.
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.
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.
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.
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.
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

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].
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.
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.
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.
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.
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.

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

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

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: 19 November 2021

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Judgment (7 paragraphs)

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