CDirector of Public Prosecutions v Ooi

[2020] VCC 1399

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00669

THE QUEEN

v

TECH YANN OOI

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2020
DATE OF SENTENCE:	3 September 2020
CASE MAY BE CITED AS:	CDPP v Ooi
MEDIUM NEUTRAL CITATION:	[2020] VCC 1399

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – procure a child to engage in sexual activity outside Australia – Use a carriage service to transmit indecent communication to a person under 16 years of age – Possess child abuse material obtained or accessed using a carriage service – United States of America- No prior criminal convictions - Imprisonment

Legislation Cited: s. 272.14(1), s. 474.27A(1), s. 474.22A(1) Criminal Code (Cth)

Cases Cited:DPP v CharlieDalgleish [2017] VSCA 360 – DPP (Cth) v Garside [2016] VSCA 74 – DPP (Cth) vWatson [2016] VSCA 73

Sentence:Convicted and sentenced to a total effective sentence (Federal) of 3 year/s and 8 month/s imprisonment a period of 18 month/s before being eligible for parole. Pursuant to s.34 Sex Offenders Registration Act 2004, the length of the reporting period is life.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms V. Hogarth	Commonwealth Director of Public Prosecutions
For the Accused	Mr A. Bayliss	MK Law

HIS HONOUR:

1Tech Yan Ooi is a landscape architect who resides at 620 Cardigan Street in Carlton.  He is Malay by birth and a permanent citizen of Australia.  He was born on 29 December 1987, currently aged 32 and during the period of this offending was aged between 30 and 31.

2On 17 August 2020 in this Court Mr Ooi pleaded guilty to three charges.  The details are set out in the indictment. We have had a number of exhibits tendered, the first and most important is Exhibit A, the prosecution opening.  In regard to that document Mr Bayliss, on behalf of
Mr Ooi, accepted that the facts in that document are the facts upon which I am to pronounce sentence.

Circumstances of the Offending

3The first charge is a breach of s.272.14(1) of the Criminal Code (Cth), procuring a child under the age of 16 years, from outside of Australia, to engage in sexual activity.  The seriousness of this offence is gleaned from the fact that the Parliament has prescribed as a maximum penalty of 15 years imprisonment.

4The circumstances of the offence are that from 13 December 2018 through to 11 January 2019, approximately one month, Mr Ooi communicated by way of Snapchat with a young child.  Insofar as that child is concerned, during that period, certainly from at least 4 January 2019, given the Snapchat Transcript on p.20 of the depositions, Mr Ooi was aware that she had identified that she was about to turn 12, therefore during the period of these conversations was between 11 and 12.

5The chats themselves are set out in Exhibit D, which is the extraction report and Snapchat transcript, the Google Hangouts extraction and statement of
Ms Nicholson of the 30^th of January 2020.  I must say it is somewhat disconcerting for the Court to read that material.  Accepting that the victim in this matter is only 11, turning 12, the discussion is clearly precocious.  I have re-read this conversation a number of times.  It is hard to believe the detail of the sexuality and how a child was participating in such play acting.  However, that is the stark reality of this crime.

6The prosecution submitted that the culpability was aggravated by the following matters.  The first was the age difference, that is she was between 11 and 12 where Mr Ooi was between 30 and 31.  However, of course one must take into account that an element of this offence involves a child being under the age of 16 and participating in such predators.

7In addition to the age difference is the matters discussed. Again one takes notice of the fact that the very element is indeed sexual activity, but the discussion itself, when one reads it, really takes up every aspect of sexuality that one can imagine, and of course involves a request for the child to masturbate herself.  The statement of the child is such that she suggests she was unaware that she was committing the crime with an adult.  That is really not relevant to the elements.  However, just those facts indicate the reason why the Parliament has made such behaviour criminal.  The purpose of such legislation is to protect young children from these circumstances.

8As the prosecutor argued, as set out in [24] of the submissions, this is a serious example of procuring as it was sustained over the offending period.  Again, one has to understand what we are dealing with.  You are dealing essentially with Snapchat, so obviously the discussion is sustained to a degree.  However, if one closely looks at Exhibit D, take, for example, the discussion on 22 December 2019, the chat starts at 1.13.05 pm and goes through to 2.47.07pm, and that involved, if one looks at that discussion, some 52 occasions.  So that there is a question and answer, or else a contribution, if you want to put it that way, on 26 occasions from each of them over that period.  To the extent that it is sustained, it is clear that that is very much a part of this type of discussion.

9Coming then to Charge 2, it relates to a charge under s.474.27A(1), from
4 January 2019 to 6 January 2019. The charge is that Mr Ooi used a carriage service to transmit indecent communications to a person under the age of 16.  The maximum penalty prescribed for this charge is seven years imprisonment.  The prosecution in its opening, evidences three instances of this behaviour, and they are set out in Exhibit A.  Each instance follows a chat which either talks of the child masturbating or asks the child to touch her clitoris during the role play.

10The first instance, set out in [14] of the opening, occurred on 4 January 2019 when, following such discussion Mr Ooi sent through a photo of his own penis.  Subsequently there was further communication, which is detailed in [16] of the opening, which occurred on 6 January 2019 when he sent a photo to the young victim, of his erect penis.  There is then further discussion as to her masturbating in some form, and as a result thereof he sends her a further video, of a period of some 15 seconds, of himself masturbating and ejaculating.  Clearly, insofar as this charge is concerned, Parliament was at pains to protect children from this serious sexualised behaviour.

11The third charge is a breach of s.474.22A(1), being possessing child abuse material which was obtained and/or accessed via a carriage service. Again, the seriousness of this charge is demonstrated by Parliament prescribing a maximum penalty of 15 years imprisonment. This charge, arose subsequent to the other charges, following the reporting of Charge 1 and 2 by the victim's mother to police in the United States on approximately 1 November 2019, and subsequently those facts being relayed to Australian Federal Police.

12As a result of such information a warrant was issued upon
Mr Ooi's property on 21 November 2019.  The details of this child abuse material is set out in Exhibit A, in particular at [23] where it describes there being 121 instances of such on the drive located and 268 instances on the tower.

13At [24], the particular nature of such material is categorised within the general categorisation adopted in this country, under the Australian National Victim Image Library.  Given my experience, and the description provided by the prosecution, there is no need for me to peruse such.  I rely in particular upon the comments of Priest JA in this regard.

14Insofar as the material, as Mr Bayliss remarked, it’s volume is not huge compared to some cases we get in this Court , however, the law is that whatever the categorisations, all categories are samples of abuse of children and depraved activity by children.  The fact is that the depravity increases in seriousness in regard to the seven levels set out.

15389 images and 81 videos were found pursuant to the warrant on the two devices.  It is accepted that all of such material concerns females aged between 10 and 15.  It is not necessary for me to go further in detail, this is precisely detailed in [24] of the opening.

16Tendered by the prosecution was Exhibit B, the victim impact statement of the child, and further, the victim impact statement of the mother.  I want to read or refer to some comments made by the child, which is Exhibit B:

'A grown man has seen things that I believe no one should ever see of a little girl'. 

17She states that she was 10 years old when this started and 11 when this ended.  I think in fact in regard to these charges she was in fact 11 and 12.

18The child talks about these crimes coming to her parents' notice, and their decision to move states in order to get a fresh start.  She notes regret for what she had done and what she had showed of herself over Snapchat. She said that she feels that she has, 'Lost some part of who I am'.  The child then goes on to talk of circumstances which are referred to in her mother's statement, where she has cut herself and had scars for the rest of life, and thereby is constantly reminded of this time in her life when she looks at the scars.  She was thankful that her parents realised what was happening to her and took her away. 

19It is very difficult for this Court, without the benefit of a psychiatric or psychological report, to understand fully the impact of this series of Snapchat and Google Hangout conversations and the provision of the video and photographs by Mr Ooi to this child. Whether there are other matters in her life that contributed to her cutting, this Court could not determine beyond reasonable doubt. However, in regard to the impact upon her, and as to the impact upon her mother, it seems to me that the statements set out in Exhibit C contains no exaggeration.  Clearly, when she found this material, concerning her daughter, who was the age of 12, it would have been a shock to her, a shock to see the material.  However, there is no suggestion by Mr Bayliss, nor do I take the view that there is any exaggeration in the impact upon the mother as set out before the Court.

20Taking all those matters into account, the prosecution submitted that given the seriousness of these crimes there was a need for an immediate period of imprisonment.  There was no issue, from Mr Bayliss that the culpability was such as to warrant imprisonment.  The real issue was should this imprisonment be immediate.

21The principles here are well known and not disputed.  Despite the numbers of cases referred to me by counsel as guideposts, given what the High Court said in Dalgleish [2017] VSCA 360, I must pass a just sentence on Mr Ooi based upon the full facts disclosed in this plea. I have, of course, regard to all the cases that both counsel presented, albeit that they in some instances were dated. However, they were given to the Court for the purpose of understanding general principles. This Court must be guided by what the Court of Appeal said in Garside [2016] VSCA 74, [19] to [25] when the Court discussed child pornography, and in Watson [2016] VSCA 73, [27] to [33] where the Court discussed transmission cases and victim trauma. Incidentally, I was the sentencing Judge in both cases. Hence objectively based upon those principles, each of these three crimes must be seen as demonstrating serious criminal culpability.

Plea of Mr Ooi

22In the plea, as I have said, Mr Bayliss did not dispute the seriousness of the criminality or the need for imprisonment. Mr Bayliss tendered Exhibit 1, his written submissions, and he spoke to those, those being dated 14 August 2020.  Secondly, the psychological report of Mr Newton from Central Melbourne Psychology, dated 8 August 2020.  Thirdly, the psychological report of Peter Hanley, dated 13 August 2020.  Fourthly, the letter from Bernard Healey, psychologist, dated 30 June 2020.  Fifthly, the letter of apology from Mr Ooi, dated 13 August 2020.  Exhibit 6 was the academic record of Mr Tech Ooi, and finally, Exhibit 7 was the character references from his family, and his employer.

23Insofar as the plea was concerned, both written and oral, Mr Bayliss stressed the fact that Mr Ooi comes before the Court without any priors, at the age of 32.  He has before the Court produced excellent character references and strong family support, and I refer to those set out in Exhibit 7.  He has, as Mr Bayliss put, and which I accept, demonstrated remorse by this plea and his statements to Mr Newton and, further, the treatment that he undertook with Mr Henley.

24I also accept that he comes before the Court by way of a guilty plea, that was entered early.  It was a plea that is particularly utilitarian given that it did not involve the young child travelling, or her parents, and it effected justice.  I accept Mr Bayliss' submission that his client is entitled to a discount for such.

25Insofar as Mr Ooi personally, what was stressed was his success in his education.  I refer to Exhibit 6, being his academic record, which is exemplary, and his performance as a landscape architect in a well-known firm in Melbourne.  In particular, I note his employer's reference, Exhibit 7, as to his capacity in his profession.

26I also note, as Mr Bayliss submitted, the impact upon Mr Ooi since his arrest.  He has acknowledged a number of issues in his life, brought to light by this criminality, and has been to Mr Newton and undergone treatment.  I want to go to those matters.  In Exhibit 2, which is the report from Mr Newton, his history is noted, to which are the matters that I have referred to, and at [22] it is noted that Mr Ooi reported that his main sexual outlet was, indeed, pornography.

27From a young boy he tended to focus on pornography for the purposes of masturbation and ultimately that pornography became focussed on young girls.  He had in his life never lived with an intimate partner or engaged in a dating relationship of any kind.  In the background to the offending, at [32], he provided, Mr Newton said, a statement which was consistent with the Australian Federal Police statements.  Mr Ooi said that he was pleading guilty and he specifically acknowledged that he was aware of the complainant's age, that he had engaged in the various forms of sexual conduct, despite this knowledge.

28By way of background, Mr Ooi said to Mr Newton the offending had arisen out of his obsessive use of on-line pornography and his similarly obsessive use of on-line chat.  I consider that an honest statement, given the normality of the rest of his life.  As noted insofar as his personality is concerned, on p.6 of the report Mr Newton found Mr Ooi to be socially awkward and an introverted man.

29Insofar as assessments were concerned I read from p.9, and the psychological coercion inherent in the conduct, the factors related to it, the presence of strong sexual deviant fantasies and his pervasive problems in both intimate and non-intimate relationships. Mr Newton concluded that he did not manifest any psychopathic personality or major mental illness.

30Mr Ooi was assessed as posing a moderate/high risk of recidivism to sexual offending.  In the opinion on that page, at [54], Mr Newton noted that the behaviour detailed and the history taken demonstrated, pursuant to the DSM-5 diagnostic criteria, an adjustment disorder with depression, and he noted that this had developed subsequent to his arrest.

31In regard to the actual offending Mr Newton diagnosed, pursuant to DSM-5, a paedophilic disorder and a sexual attraction to females.  At p.10 he said this [55]:  'Despite the challenges of recent times', we are talking in this instance about the COVID-19 crisis that we are all going through, 'Mr Ooi has maintained consistent engagement with therapy and has made good, if incipient, progress.  Completion of a comprehensive sex offender treatment program would be the single most important factor in the prevention of recidivism of Mr Ooi.’

32I point out that at Exhibit 3 there is a further report from the same centre, this time from Mr Henley, of Mr Ooi attending at that centre on nine occasions, starting on 21 May, and undergoing counselling therein, demonstrating good insight. It is noted that he had made incipient progress.  At [12] Mr Henley said, 'I would recommend Mr Ooi would require a lengthy period of specialist sex offender treatment to comprehensively address his treatment goals'.

33Going back to Mr Newton, Mr Newton confirms Mr Henley's view as to the need for ongoing treatment.  Insofar as Mr Ooi being in gaol, Mr Newton indicated that there was no reason why Mr Ooi could not get such treatment in gaol.  I am referring now to [11], however, made the point that the combination of his cultural diversity, his disclosed personal challenges and the assessments made, would make him a comparatively vulnerable prisoner, which was submitted to me by Mr Bayliss and with which I totally agree.

34Exhibit 5 was also tendered, which was the apology to the Court and the community from Mr Ooi himself.  I accept that apology as genuine and I accept that Mr Ooi is totally ashamed of himself.  In fact to use his words, 'deeply ashamed', and wished to apologise to all those affected.  Mr Ooi notes his standing as a professional and the steps that he had taken, both to come to Australia and establish himself, and the significant consequences that this offending would have upon his life.  Mr Ooi noted, after speaking to his lawyers, that he would be unlikely to be able to stay in Australia, and also indicated, what no doubt any person of his background with no priors whatsoever, would rightly have, and that is that he was terrified of receiving a gaol sentence.

35Mr Ooi said that it was difficult for him to face the shame involved and understood that the images on his computer were illegal and that children, in order to produce them, had been abused.  He said he had been exposed to pornography as a child and had discovered child pornography not long after that.  Unfortunately he continued with that interest.  Mr Ooi made this comment on the top of p.4, 'Since the offending, but before I was charged by the police, I felt that life was punishing me in its own way and I'd been reaping the misfortune that I had sewn'.  Mr Ooi goes on to talk about losing his job and being laid off and having an accident, but no doubt what he was referring to was these serious charges and the potential for him to go to gaol.

36Those matters are also relied upon by Mr Bayliss, as was the potential for Mr Ooi to be deported.  This Court has no role in that matter.  As was rightly put to the Court, any sentence involving over 12 months' imprisonment does, according to what we understand of the current Immigration Minister's statements, mean that there is a very strong chance of being deported after the sentence is served.  This Court has no role in regard to that administrative action.  However, one is required, according to the authorities, to take into account the impact of such risk of deportation on Mr Ooi, both when in gaol and subsequently by way of its impact upon Mr Ooi’s plans for life, which has been totally successful to date and, indeed, the sacrifices made by his own family in Malaysia to send him to Australia.

37All of those matters were put to me. Mr Bayliss submitted, that while imprisonment was appropriate, in all of the circumstances the Court should consider whether an immediate recognisance release order was appropriate given the totality of the circumstances.  It has, of course, in this sentencing calculus, been necessary to bring to account all of those factors that both counsel have put to me, and the principles that I have spoken to.  Unfortunately, Mr Ooi, I cannot accede to the submission made by Mr Bayliss because of the seriousness of this offending.

38If you would stand, please.

39Insofar as Charge 1 is concerned, that is an offence against s.272.14(1) of the Criminal Code (Cth), the procuring of an under-age child from overseas to engage in sexual activity, you will be sentenced to a period of imprisonment of three years.

40In regard to Charge 2, that is the offence pursuant to s.474.27A(1) of use a carriage service to transmit indecent communications to a child under the age of 16, you will be sentenced to a period of imprisonment of two years.

41In regard to Charge 3, the possession of child abuse material by way of the utilisation of a carriage service, which is an offence against 474.22A(1) of the Criminal Code, you will be sentenced to a period of imprisonment of three years.

42Madam Prosecutor, you might have to be of some assistance here.  If this was a State sentence I would use Charge 3 as the base sentence, that is of three years, and I would order that six months of Charge 1 and two months of
Charge 2 be served cumulatively upon that, making an aggregate sentence of three years and eight months. Obviously given that sentence it is not possible for me to give a recognisance release order, nor do I intend to. I intend to order that he serve, before being eligible for parole, a period of 18 months. 

43Madam Prosecutor, as I understand the provisions of s.19, to achieve, in the Commonwealth sphere, an aggregate sentence of three years and eight months, I would do it by sentencing in regard to Charge 2, that is the period of two years, Mr Ooi to serve that sentence starting today.  In regard to Charge 1, that is a sentence of three years, I would order that that sentence start two months from today. And in regard to Charge 3, again, a sentence of three years, I would order that the service of that sentence starts eight months from today. That means that Mr Ooi will serve eight months up until that sentence and then three years, which is the aggregate sentence I want to give him. I would then order that he be eligible for parole after serving 18 months imprisonment.

44MS HOGARTH:  Yes, Your Honour.  I am just doing the maths.

45HIS HONOUR:  Is that the way I do it in Commonwealth legislation?

46MS HOGARTH:  Yes, that is an appropriate way of directing the sentences.  Your Honour, I am just doing the maths to ensure that my calculations are the same as Your Honour's.

47HIS HONOUR:  So I sentence on Charge 2 for two years today, Charge 3 for three years, two months from today, and Charge 3, for three years, eight months from today, which carries with it a total sentence of three years and eight months, and I order a parole period of 18 months.  Does that fit in with the Commonwealth guidelines?

48MS HOGARTH:  That sounds correct.  I would be grateful for a moment to just - to ensure that - - -

49HIS HONOUR:  Yes, not a problem, not a problem.

50MS HOGARTH:  thank you, Your Honour.

51HIS HONOUR:  Can I indicate, whether it is actually legally required or not, s.6AAA needs to be indicated and, Mr Ooi, it is important for me to tell you, according to the State Parliament anyway, the benefit of you pleading guilty.  It is taken that this applies to Commonwealth sentences as well.  What I propose to sentence you to is a period of imprisonment of three years and eight months and that you serve a minimum of 18 months before you will be paroled.  Had you not pleaded guilty the sentence I would have given you is not an aggregate sentence of three years and eight months but one of four years and six months, and the minimum period that you would have had to serve before being eligible for parole would have been two years and three months.  I tell you that, and it is probably the last thing you need to hear as to any further sentence than you get, but Parliament requires me to tell you that so that you are aware precisely of the impact of you pleading guilty.

52There is no order required for forfeiture, as I have been advised by the prosecutor today.

53Madam Prosecutor, when you have confirmed that is the way that I should do it, can I indicate one thing I mentioned during the plea. It has only been confirmed when I look at the reports of various legal cases today, which involved, I think, about 12 articles that we get sent, about four involving pornography, all of which, I think, involved prison sentences. I have said this on a number of occasions, but I would appreciate if both the informant but, in particular, yourself, could forward this to the relevant authorities. It seems to me that some steps should be taken, I accept totally, that the Parliament has provided these heavy penalties to protect young children, both here and internationally, but that protection, I think, would be assisted by the community being advised of the sentences that await people who are minded or, in this case, impacted by obsession, to download or be involved in this type of crime.  It seems to me that the community should, by some form of publicity, be told the consequences, because these crimes come to this Court. Prevention needs something apart from just creating harsh sentences, I know there is strong steps taken between the Commonwealth and international authorities to bring to light these crimes, but I think some publicity, is required, and I have said this on a number of occasions, in this community to advise people of the very heavy penalties that apply if you are involved in this type of criminality.

54That request has not brought any fruit, Madam Prosecutor, to date, so we will see what happens.

55MS HOGARTH:  Noted, Your Honour.

56HIS HONOUR:  But I would appreciate it if you could convey my concerns.

57MS HOGARTH:  Yes, Your Honour.

58HIS HONOUR:  Now, coming back to the way I pronounce the sentence.  Does that effect what I seek to effect?

59MS HOGARTH:  Yes, I think it does.  If there are any issues, once the record of orders are sent through I can always contact Your Honour's associate if there are issues, but from what it looks to me at this point in time, it looks like it is an appropriate sentence, Your Honour, in terms of its structure.

60HIS HONOUR:  Yes, I was saying we cannot do it the way we do it in Victoria.  I have got to do it according to s.19, and I think that is the way you do it.  Are you happy with that, Mr Bayliss?

61MR BAYLISS:  Yes, Your Honour.

62HIS HONOUR:  Not happy with the sentence but the way I have set it out anyway.

63MR BAYLISS:  Yes, Your Honour.  Thank you, Your Honour.

64HIS HONOUR:  I will just check something with my associate.  I am sorry, we just - take a seat, Mr Ooi.  I thought that Mr Ooi had been given a copy of the statement that the Parliament requires us to give as to sexual reporting.  We normally do that at the start.  We had it signed but we have not given him a copy.

65MR BAYLISS:  Yes, Your Honour.

66HIS HONOUR:  Yes, Mr Ooi, it gives the Court no pleasure to sentence a person such as you to gaol.  However, like I told you, the seriousness of these offences gives the Court no alternative.  I hope that, as you indicated in your letter to the Court, you continue with your treatment and having served this sentence, wherever you may then end up, that you revert to the successful life that you had prior to this.  I wish you well.  Yes.

67MR BAYLISS:  Thank you, Your Honour.

68HIS HONOUR:  Thank you, Mr Bayliss, for your assistance.

69MS HOGARTH:  May it please the Court.

70HIS HONOUR:  Thank you, Madam Prosecutor.  The prisoner can be taken down.  Thank you, officers, I appreciate it very much.

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