CDirector of Public Prosecutions v Gu
[2025] VCC 805
•12 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
CR 24-02062
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| YUTAO GU |
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JUDGE: | HER HONOUR JUDGE MARKS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 June 2025 | |
DATE OF SENTENCE: | 12 June 2025 | |
CASE MAY BE CITED AS: | CDPP v Gu | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 805 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Knowingly possess child abuse material – Section 51G(1) Crimes Act1958 (Vic) possession of 160 images and three video files on phone, all of animated children
Legislation Cited: Crimes Act 1958; Sex Offenders Registration Act 2004; Sentencing Act 1991.
Cases Cited:DPP v Perkins [2019] VCC 1685; Ponniah v The Queen [2011] WASCA 105
Sentence:Community Corrections Order for a period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Z. Hough | Office of Public Prosecutions (Cth) |
| For the Accused | Ms P. Marcou | Garde-Wilson Criminal Lawyers |
HER HONOUR:
1 Mr Gu, you have pleaded guilty to one charge of being in possession of child abuse material contrary to s51G of the Crimes Act 1958 (Vic).
2 The details of your offending are in the summary of prosecution opening for plea of 3 June 2025 which is Exhibit A.
3 On 20 July 2023, you arrived at Melbourne International Airport on a flight from overseas. You had your baggage examined by Australian Border Force officers and your Apple iPhone 12 was examined. Preliminary examination identified the presence of child abuse material on the phone and it was then forensically examined.
4 160 images of child pornography were located and there were 3 animated videos. The images of child pornography were animated images. They were not of real people, nor were the videos.
5 You participated in a record of interview with Australian Border Force officers and you told them you thought that child abuse material only related to a real child under 18 being abused in some way. You said you would download RAR and zip files relating to artists you knew but you did not know every image produced in those downloads.
6 You said you download these files from F95 Zone and Pixiv, a Japanese website, and that sometimes you downloaded individual images. You said you had accessed a website from a Japanese website in your own name. This website is free to the public and you follow a particular artist who was able to draw or create these characters. You said you hoard the images. You did not share them and you rarely looked at them.
7 The offence of possessing child abuse material is a serious offence, as indicated by Parliament's imposition of a maximum sentence of 10 years imprisonment.
8 Your offending involved possessing 163 child abuse material files. All, as I have said, were animated children. These files included depictions of depraved sex acts such as children engaging in penetrative sex acts with multiple adults, fellatio. The age of the children ranged from approximately six to sixteen years of age.
9 This is a serious offence, but the criminality is of a different nature than that involving real children. However, the material fuels the demand for such material whether or not it involves real children. It has the capacity to groom not only its recipients but those who might be affected by those who receive it.
10 This is a low range example of offending of this type, as both prosecution and defence submit, and the gravity of the offending is mitigated by the fact that the items do not include real children. It is appropriate to distinguish between anime and real children material in assessing culpability in relation to the totality of the images[1].
[1]DPP v Perkins [2019] VCC 1685 per McInerny J at [9]; Ponniah v The Queen [2011] WASCA 105 at [38].
11 There are no features of cruelty or physical harm in the images and videos. It is a relatively small amount of items that are involved, and it was all on one device, your phone.
12 You are sentenced for knowing possession on a single day.
13 The gravity of your offending is informed by your moral culpability to which I now turn.
14 You were unaware of the illegality of the files. You thought that child abuse material only related to a real child. You acted alone. You were not part of a collaborative network of likeminded people. You did not publish or produce the material, so there is no risk, by your conduct, of vulnerable people having access to it. You did not possess the material for profit. It was for your personal use. You are not proximate to those responsible for creating it. You did not have a storage system on your phone for the items. You had downloaded them ad hoc from various websites.
15 Turning to your personal circumstances, you are 24. You were 22 at the time of the offending. You are currently unemployed. You are an only child. You were born in Shenyang in China. Before you left China your father worked as a railway worker and your mother as an ESL teacher. You were raised in a small one bedroom high-rise apartment, sleeping on a mattress on the floor with your parents.
16 While you were in China your father had an aneurysm and was unable to continue work and this led to increasing financial hardship for your family. Your family migrated to Australia when you were about 12, joining your maternal aunt. After arriving in Australia and learning English you completed Grade 6 at North Melbourne Primary School. You went on to high school, completing VCE at University High School in Parkville. You then did a Bachelor of Science over four years rather than three, due to the restrictions of COVID lockdown and the difficulties that that gave rise to.
17 You majored in psychology, and completed your Bachelor of Science in early 2024. On the day you received your graduation you also received the summons for this offence. You have grappled with mental health issues since then. Your barrister told the court, that your mother had told her, you had been suicidal and that you had placed your life on hold, pending the completion of this judicial process.
18 You continue to live with your mother and your aunt. You are unemployed at the moment. You are on Centrelink. Since you were charged in December 2024, you have had counselling with psychologist, Ms Tracey Allen. By 2 June 2025 you had attended seven sessions.
19 Ms Allen provided the court with a report. She said your attendance had been excellent, that treatment goals had included monitoring and managing symptoms of anxiety and depression and commencing offence specific treatment. You have been responding well to psychological treatment. You had not engaged in counselling before and you have been an active participant in your sessions. Despite that process being foreign and uncomfortable at times, you have been open to discussing your offending behaviour.
20 She said that your symptoms of depression and anxiety have reduced. Your self-awareness is improving. Initially, you could not understand the significance of the anime child exploitation material. You now understand that accessing child exploitation material in any form is illegal and you expressed quite significant distress when you learnt more about child exploitation material.
21 You are open to your need for support and treatment. You have acknowledged responsibility for your behaviour and it is Ms Allen's opinion you feel genuine remorse. I accept that that is the case.
22 You are an isolated person. You struggle to form social relationships, which is a likely contributor, according to Ms Allen, to your offending behaviour and your preference with accessing the online world. Ongoing counselling will assist.
23 You have no prior criminal history. You entered into a plea of guilty after committal, before any substantive proceedings were listed in this court. Both your counsel and prosecution agree that the plea was entered at the earliest opportunity. In doing that you have avoided the need for a trial and the use of public resources that would otherwise have been spent conducting that. I take the utilitarian value of your plea of guilty into account.
24 I find you have promising prospects of rehabilitation. You are young. You have worked hard and studied hard against a difficult background. You have positive future plans and you want to seek study and a career pathway that is realistic for you, post-conviction. You have taken positive steps by engaging productively in the sessions with Ms Allen. You have acknowledged you need further support and treatment to address the behaviour that led to your offending.
25 In an extended pre-sentence report from the Department of Justice and Community Safety, the report writer assessed you at a medium level of general re-offending. Ms Allen notes she does not have any concerns you will engage in contact offending.
26 I turn now to general deterrence. It is a primary consideration with regards to this kind of offending. Although the images you possessed were animated and not of real children it is still highly harmful material. It has a tendency to normalise exploitative sexual activity involving children.
27 Possessing the material fuels demand. It could encourage the corruption and exploitation of children, and given their vulnerability there is a strong public interest in protecting children from sexual exploitation, so denunciation is also a key role in sentencing.
28 Specific deterrence is an important factor. I am satisfied you now understand the wrongness of your offending, and although Ms Allen states it is unlikely you will engage in contact offending, you have been assessed, as I said, at a medium risk of re-offending and I must impose a sentence appropriate to manage that risk.
29 I must also take into account the protection of the community. This type of material can incentivise susceptible individuals to engage in sexual activity involving real children.
30 I have considered the comparable cases provided to me in this case, as well as other cases. They are not binding. They give a yardstick to indicate where this case sits compared with similar offending. I have also of course considered the different facts before me. Every case is specific to the facts of that case, and needs to be decided on those facts.
31 Your offending only concerns looking at animated material and receiving that material; whereas other cases I considered relate to either a mix involving real children and anime children or entirely to real children.
32 Appellate courts have recognised that an immediate term of imprisonment is ordinarily imposed for this type of offending. But it is accepted by the prosecution, and by your counsel, that a community corrections order is appropriate in all the circumstances of your case.
33
Your offending is a class 2 offence, as defined under schedule 2 of the
Sex Offenders Registration Act 2004(Vic). Under s6 of that Act you are a registerable offender. You are required to comply with the reporting obligations imposed by it, for eight years.
34 Your counsel submitted that no conviction should be recorded in your case, because recording a conviction might impact your future employment prospects, and your ability to obtain certain qualifications in your field of study, namely psychology.
35 The prosecution oppose this and submitted that, whilst mitigating factors in your case support the imposition of a community corrections order, a conviction should still be recorded.
36 I consider a conviction should be recorded in the circumstances. I have had regard to the factors in s8(1) of the Sentencing Act 1991 (Vic). These include the nature of the offence, the character and past history of the offender, and the impact of the recording of the conviction on the offender's economic or social wellbeing or on his or her employment prospects.
37 Although you have no prior convictions and your offending is of a lower range, having regard to offending of this type, it is still serious. Although the images were animated, they depicted children, some estimated to be as young as six, engaged in depraved acts.
38 Whilst it was put that a conviction may impact on your employment prospects and obtaining accreditation in your field of study, your counsel could not point to any additional impact over and above the fact that you will be on the Sex Offenders Register for eight years, in any event.
39 I ordered a pre-sentence assessment report to be provided to the Court from the Department of Justice and Community Safety, to assess your suitability for a community corrections order, and that was received on 6 June 2025, together with a mental health advice and response service (MHARS) report. The writer of the CCO report said that when you were asked about why you accessed the content, you responded that you could not remember. You did not think it was because of the childlike characteristics in the images. When asked about the impact, you stated such content is terrible.
40 You were recommended as a suitable candidate for a CCO and it was suggested that a number of conditions be imposed. The MHARS report noted you had been experiencing stress, distress, worry and uncertainty due to this matter. You had not experienced difficulties with completing daily activities or your appetite, but your sleep pattern had been poor. It concluded that you could benefit from psychological counselling that focussed on identifying your values, and supporting you to focus on achieving your social life goals.
41
Both the MHARS report and the CCO report suggested ongoing assessment and treatment of your mental health and if possible, that it be conducted by
Ms Tracey Allen, your current psychologist. I cannot make an order about that but if it is accommodated that would seem to be very sensible.
42 I turn now to the sentence.
43 On Charge 1, possession of child abuse material, you are convicted and sentence to a community corrections order of three years which will commence today.
44 The conditions of this order are you must attend Ringwood Justice Service Centre within two clear working days of this order commencing.
45 You will be under the supervision of a community corrections officer for three years, which means you will require to be supervised, monitored and managed as directed. You must undergo assessment and treatment, including testing for mental health as directed. You must undergo assessment and treatment for an offence specific program, namely, sex offending.
46 You are required to perform 180 hours of unpaid community work as directed over the three years. I order that 80 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of that unpaid community work condition.
47 You must not commit an offence punishable by imprisonment during this order. You must not leave Victoria without permission of Community Corrections. You must let your community corrections officer know within two clear days of your changing address or a job. You must comply with any lawful direction given by a community corrections officer that is necessary to ensure you comply with the order.
48 If you contravene this order by either committing further offences or failing to comply with the conditions you can be brought back before this court, fined and re-sentenced. That might mean you go to gaol for these offences.
49 I indicate for the record, that as I have stated, that the MHARS report recommends Ms Allen, your current psychologist, continues to administer your treatment and assess your mental health.
50 You have not spent any days in pre-sentence detention in relation to these charges.
51 Under s6AAA of the Sentencing Act 1991, I indicate that if you had pleaded not guilty and been found guilty, I would have sentenced you to a four month term of imprisonment.
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