STATE OF TASMANIA v XINZHE LIN 28 JULY 2021
COMMENTS ON PASSING SENTENCE GEASON J
Mr Lin you are convicted upon your plea of guilty to a charge of importing child abuse material contrary to s 233BAB(5) of the Customs Act 1901.
Your conduct occurred between 17 August 2020 and 26 November 2020 during which period you intentionally imported 26 child-like sex doll parts from China.
The facts are as follows. On 8 October 2020 a container from Shenzhen in China, arrived at a terminal in Melbourne.
It was addressed to you at an address at Taroona in this State.
The consignment was examined by Australian Border Force officers and found to contain surfboard fittings and an assortment of sex toys including various silicone body parts, vibrators, masturbation aids and lubricant.
The silicone body parts varied in size and appearance: some appeared to depict a child and some an adult. Border Force Investigators deconstructed the child like sex doll parts and ascertained that they appeared to be depicting the body parts of a female child under the age of 18 years: 26 buttocks parts in sizes ranging from small to extra small, all with vaginal and anal orifices, and one with pre-molded underwear. You had neither applied for nor received permission to import these goods.
The 26 doll parts are child abuse material pursuant to s 233BAB(4)(g) of the Customs Act because they depict a child under the age of 18 in a way which would be likely to cause offence to a reasonable adult. That is so because a reasonable person would consider it likely that these items are intended to be used by another person to simulate sexual intercourse. This makes them tier 2 goods under schedule 7 of the Customs Regulations 2015 and accordingly, s 4A(1) of the Customs (Prohibited Imports) Regulations 1956 is engaged.
Upon their discovery, the items were seized. A seizure notice was issued and the balance of the consignment was delivered to you and you signed for it. The Commonwealth has provided detailed evidence linking you to the import, and in view of your plea of guilty it is not necessary to set this out in further detail here.
At the time you operated an EBay shop called OZshop Grand. That shop offered for sale surfing equipment and sex toys including silicone body parts not assessed as being child-like, unlike those the subject of this charge.
On 3 December 2020 a search warrant was executed at a residential address occupied by you. You were present with your partner and you were cautioned. You were offered a record of interview and you agreed to participate. You made admissions including the following:
- That you imported the consignment.
- That you had an Ebay shop which sells sex toys amongst other things.
- That the business got busier and you started hiring workers, and at the time employed four people in that business.
- The main worker was in China who assisted you with procurement. He was, you said, responsible for preparing a commercial invoice in relation to the consignment and preparing the list of items contained in the consignment.
- You told officers that you stored the goods in your garage, and had started hiring warehouse space in Sydney but had not stored any items there at that time.
- You agreed that in December 2019 the Australian Border Force issued you with a seizure notice in relation to a different import which contained child-like sex doll parts. This related to a consignment containing 14 female silicone child-like sex doll pieces.
- You agreed too, that on another occasion at the airport you were reminded by Border Force officials to speak with your broker before importing goods to Australia. [On 3 January 2020 when you arrived at Melbourne Airport on an International Flight from Hong Kong, you were subject to a baggage examination and during questioning you said that you imported surfing equipment and sex toys. At was at this point that you were reminded that you should speak to a customs broker before importing such items into this country. No goods were seized at that time].
- You also admitted that you did not seek permission to import the dolls in the consignment. You said that you would have tried to sell these sex doll parts on Ebay if they had not been intercepted.
- You confirmed that you had paid for the doll parts and that you stocked that kind of doll.
During the search an additional 23 dolls were seized, and these were also determined by the Australian Border Force to be child-like. They are not the subject of this charge.
Relevantly your Ebay store no longer advertises nor sells such items.
The Crown submits that a sentence of imprisonment is the only appropriate sentencing disposition for this offence. It is put that the objective criminality of your conduct and the need for general deterrence is such that immediate imprisonment is warranted.
The overarching principle under s 16A of the Crimes Act is the imposition of a sentence that is of a severity appropriate in all of the circumstances of the offence. What is appropriate includes but is not limited to the objective seriousness of the offending behaviour.
Your conduct involved possession of material which has the potential to create a market for the continued corruption and exploitation of children. That is because making this sort of product available for sale has a tendency to normalise sexual activity with minors: it may stimulate a susceptible recipient to engage in sexual activity involving real children.
In 2019 the Commonwealth legislature amended the definition of child abuse material in the Customs Act to include child sex dolls. This was part of a number of amendments intended to target child exploitation. The expanded definition was directed to the risk that acts involving child-like sex dolls could lead to the escalation of risk to real children. This was based upon research undertaken by the Australian Institute of Criminology in 2019 which determined that it is possible that the use of child-like sex dolls may lead to escalation in child sex offending in a way similar to that which can occur following the viewing of online child abuse material. It was also identified in that research that the use of child-like sex dolls may desensitise users to the potential harm that actual child sexual abuse causes, and that it potentially results in the risk of children being objectified as sexual beings.
The risk of normalisation arising from the consumption of products such as these and the resultant risk that recipients of these products might attempt to engage in acts involving real children is real and constitutes a very important consideration in sentencing.
In that regard, I accept that general deterrence is a paramount sentencing consideration. In those circumstances the relevance of an offenders lack of prior convictions is less significant than might ordinarily be the case: not irrelevant, but not front and centre. I note as well that when searched, your garage contained other child-like sex dolls not the subject of this charge. That precludes any suggestion that this act of importation was somehow isolated. It also emphasises the need for a sentence which deters you.
In assessing the objective seriousness of your crime, I have regard to the number of parts which were imported, 26 in all; the fact that the parts were small and only consisted of the genitalia with orifices and were thus clearly designed for stimulating sexual activity; that your motive was commercial profit; and, as I have recorded already, that this was not the first time you had imported child-like sex dolls; that you were importing these products for sale; and that the result of your activity was intended to be profit.
Submissions made on your behalf emphasised the reckless nature of your conduct. It is put-and I accept, that you did not consider the prospect of your activity leading to real children being harmed. That proposition is reflected too, in the record of your engagement with the psychologist Mr Cummins who prepared a report to which I have had regard.
I accept that your conduct was driven by an economic imperative, and there were financial advantages in transporting small items, but the risk of harm to others from your conduct is not diminished as a result of that.
And whilst I accept that you may not have thought carefully about the consequences of your conduct, it is no less serious for that. It is not dissimilar to the conduct of a drug trafficker who by his actions disseminates illegal drugs into the community and is thus contributing in a pivotal way to the resultant harm associated with that activity. The fact that a drug trafficker may not think carefully about the consequences of his or her crime does not derogate from the objective seriousness of the conduct. Thus, whilst I accept that you had not given careful thought to the seriousness of your actions, because of the real potential for actual harm which follows from it, the need for a strong sentencing response is not subdued. There is of course, no evidence of actual harm in this case because the offending items were seized before that could occur. It is the potential for harm that informs the need for deterrence as a means of discouraging others from entertaining the idea that this sort of activity is worth the risk.
In mitigation I accept that the offending occurred over a relatively short period and that it has stopped.
It is not suggested that you use any of these items yourself or have any interest in child pornography.
I accept that your plea of guilty has a utilitarian benefit which requires a sentencing discount. In the circumstances I discount the penalty I would otherwise have imposed by around 20% (I have rounded the sentence upwards). I also have regard to your plea as evidencing your remorse which I consider to be genuine.
You have cooperated with authorities and that counts in your favour.
I have regard to the medical report which has been prepared by Mr Cummins. He describes symptoms of moderate depression and anxiety, but I do not consider these as directly relevant, and I do not understand the submissions made on your behalf to call those matters in aid, as explaining your decision to import these items. I do accept his opinion that you are unlikely to reoffend. As I have already said, It is not suggested that you use any of these items yourself or have any interest in child pornography. Mr Cummins assesses you as a person not presenting as a risk.
You have no prior convictions and you are presently in Australia, I understand, pursuant to a bridging visa. I have been told that you may not be eligible to continue to reside in Australia as a result of these offences.
The pre-sentence report refers to that issue too. It is suggested that a consequence of your offending behaviour is that your application for a working visa within Australia will likely be impacted, perhaps refused. I accept that you realise that your conduct has jeopardised that prospect. It is your belief that you will be deported from Australia following your sentencing for this offending.
I am prepared to accept that this possibility, has caused you to reflect on this behaviour, and triggered a realisation that actions have consequences, an insight missing in your offending. That insight is likely to influence your future conduct, and your obedience to the law generally.
You are presently in a relationship. Your partner who has previously been in this country, has returned to China where she remains. She has provided a reference on your behalf to which I have had regard.
You occupy premises in Sandy Bay, but you are not the lessee of that property, merely sharing that accommodation with other people. That is considered to be problematic in relation to your assessment for a home detention order, a sentencing course that was urged upon me by your counsel. That is so because your continued right of occupation of those premise is uncertain. I note that in the last 12 months you have endured a degree of transience in your accommodation arrangements, occupying a number of different premises. I regard the lack of certainty around your accommodation arrangements as relevant to the assessment of the suitability of that sentencing option.
Whilst I am referring to home detention, another matter raised in the report as militating against that sort of order, is that the proposed address is close to a school. In this case, I would not regard that as a material consideration, though I accept that ordinarily in circumstances where there is actual evidence that an offender has exhibited a predilection for engaging in the sort of sexual behaviour for which these doll parts were designed, such matter would be relevant. But, as I say, given that there is no suggestion that you exhibit any such interest I would not regard the proximity of the proposed residence to a school as a material consideration, had I been considering that sentencing option. I regard yours as the conduct of a person seeking to take advantage, in a business sense, of the predilections of others.
But I have determined, that the objective seriousness of this offending makes such an order inappropriate. In my view the conduct requires a different sentence for the potential harm generated by it. In that respect, noting that you are without prior conviction, but that this conduct occurred in the context of two earlier episodes which at the very least amount to warnings of the consequences of recklessness in relation to the importation of goods into this country, a sentence which emphasises personal deterrence, as well as general deterrence to which I have already spoken, is plainly required.
In all of the circumstances I have determined that a sentence of imprisonment is necessary.
You are to be condemned for importing these vile products no matter how inattentive you were to the risk of the harm they could bring with the potential for detriment to real children.
For the gravity of the offending and to address general and personal deterrence, the need for denunciation and punishment I fix sentence at 11 months’ imprisonment.
I turn to consider whether I should suspend some or all of that penalty. I take that course in accordance with the principles articulated by the High Court in Dinsdale.
It is a difficult matter in this case because your crime is serious one.
There is no doubt that a suspended sentence is a term of imprisonment, carrying with it the risk of heavy consequences for any repetition or indeed any other serious offending, and thus hanging over your head as a factor influencing your conduct from here. The question is whether such sentence satisfies the sentencing obligations imposed upon the Court. In your circumstances, and having regard to the short duration of the offending the subject of the charge, your remorse, the salutary effect of this process – from interview, charging and appearances in Court, and the publicity attaching to it; your plea and to an extent the medical report, I have decided that I can suspend the operation of the sentence on certain conditions while satisfying the relevant sentencing considerations.
Accordingly I make the following orders:
- 1 You are convicted and sentenced to 11 month imprisonment to be released immediately upon your giving security by recognisance in the sum of $3000 upon condition that you are of good behaviour for a period of two years, and are subject to the supervision of a probation officer for two years, must comply with the reasonable and lawful directions of that officer, and submit to medical, psychological, or psychiatric assessment or treatment as directed by a probation officer.
- 2 You must not leave or stay outside Tasmania without the permission of a probation officer.
Having regard to the extent of the offending, its duration, and the medical evidence that you are not likely to reoffend and do not exhibit any evidence of an interest in these materials or children in a sexual sense, I have decided that an order placing you on the register of sex offenders is not required in this case.